Published:  5th October 2023

PLP has been granted permission to intervene in Liberty’s challenge to the Home Secretary over her decision to introduce anti-protest regulations via statutory instrument.

This change took place just months after the same provisions were voted down by Parliament following debate on the Public Order Act 2023.

PLP CEO Shameem Ahmad said:

“Parliament is sovereign, not the Home Secretary or indeed any minister.

“This controversial move significantly undermines Parliamentary sovereignty and UK constitutional convention. If it succeeds it will set a dangerous precedent for the future of law making in the UK.

“A key convention in our constitution is that statutory instruments are not used to make major changes to policy, much less to impose restrictions on our civil rights. This is because the process by which they are introduced does not allow meaningful scrutiny by Parliament.

“It is therefore wrong that Government has used this mechanism to make regulations to restrict the right to protest. It is even more astonishing that they have done so in the same session that Parliament emphatically rejected these very changes when they were debated during the passage of the Public Order Act 2023. The public deserves better than for changes to our civil liberties to be smuggled in through the back door.

“Parliamentary scrutiny of statutory instruments is little more than a rubber stamp. That may be appropriate for some technical regulations, but certainly not when it comes to civil liberties.

“We are asking the Court to be robust in scrutinising the lawfulness of the regulations in these circumstances. The regulations very clearly do not reflect the will of Parliament. This situation represents a significant crossroads in our constitutional history. Either the Court will accept that the regulations are contrary to what Parliament intended, or we risk setting a precedent that allows the Government to dodge democratic scrutiny.”

PLP is represented pro bono by Tom de la Mare KC, and Tom Cleaver of Blackstone Chambers and Bijan Hoshi of Public Law Project as counsel. The solicitors are Herbert Smith Freehills, also acting pro bono.

About statutory instruments – the ‘all or nothing’ approach to law-making

  • Regulations brought in by statutory instrument are subject to minimal Parliamentary scrutiny.
  • They are ‘all or nothing’. At best, Parliament can only vote to accept or reject them, with no chance to amend them.
  • They are virtually invulnerable to defeat. Between 1950 and 2017, only 0.01% of the total number of instruments laid before Parliament were rejected.

PLP’s witness statement sets out the timeline of decision-making:

  • During debates over the Public Order Act 2023 in February, there was criticism from the House of Lords over proposed amendments, including widening the definition of ‘serious disruption to the life of the community’ to include ‘more than minor’ disruption.
  • Those amendments were voted down by Parliament in February, with some peers expressing the view in debate that such a wide definition of ‘serious disruption’ would have a chilling effect on the right to protest.
  • The 2023 Regulations were then drafted in April. This statutory instrument, created by using ‘Henry VIII powers’ (powers that permit Acts of Parliament to be changed by regulations), permitted the Secretary of State to make essentially the same changes that had been rejected by Parliament in February.
  • The 2023 regulations were brought into force on 15 June.

Read about why Liberty are taking the Home Secretary to court.