Liberty back in court against Government’s unlawful protest legislation

• Liberty is back in court challenging legislation it argues is “undemocratic, unlawful and unacceptable”

• Hearing at the Court of Appeal on Wednesday 4 and Thursday 5 December 2024

• Liberty has called on the new Government to “uphold the rule of law” and quash legislation that High Court previously ruled unlawful.

The human rights organisation Liberty is today (4 December) back in court following an appeal by the Home Office against a ruling that found previous Home Secretary Suella Braverman acted undemocratically to create new anti-protest laws she had no power to make.

In May 2024, the High Court ruled that the previous Government had acted unlawfully in bringing in new legislation which restricted protest rights, despite it having been rejected by Parliament just a few months earlier.

The legislation lowered the threshold at which police could impose conditions on any protest it deemed as causing ‘more than minor’ disturbance, down from the previous definition of ‘serious’ disruption.

In its judgment, the Court said that ‘serious cannot mean more than minor’, and found that the Government ran a ‘one-sided and not fairly carried out’ consultation period, in which only bodies supportive of the measures were invited to take part.

Liberty argued that the legislation was “undemocratic, unlawful and unacceptable”, and was “brought in via the backdoor” using secondary legislation which requires much less scrutiny than a Bill would. Liberty said the appeal contradicts a previous statement by the Attorney General, Richard Hermer KC, at in his swearing-in which said that the Government would not abuse the use of secondary legislation. In July, Hermer said “looking inwards, we will seek to promote the highest standards in how we legislate – seeking to increase accessibility and certainty in how we make law, including not abusing the use of secondary legislation”.

The legislation had been quashed by the Court as part of the ruling in May, however, this was suspending pending an appeal launched by Government. The hearing at the Court of Appeal is taking place on Wednesday 4 and Thursday 5 December. The case is now against the new Home Secretary, Yvette Cooper.

In its submissions to the Court, Liberty has said once more that democratic principles must be adhered to by any Government in charge.

It is estimated that hundreds of people have been arrested and prosecuted under this legislation, including the climate activist Greta Thunberg who was acquitted of all charges in a hearing in February 2024. Liberty has called for all convictions made under this legislation to be wiped.

Akiko Hart, Liberty’s director, said:  

“We are in court today to uphold the rule of law, and ensure no Government can run rampant over democratic process to pursue its own agenda. Accountability matters, and we hope that the court will agree once again.

“Despite the regulations being democratically rejected by Parliament, then Home Secretary Suella Braverman decided to bring it in through the back door to pursue her own agenda. And she deliberately chose to invite only the voices that agreed with her in the consultation. Liberty went to court to defend democracy, and we do so again no matter who is in power.

“We all want to live in a society where our government respects the rules. It is more vital than ever that the rule of law is observed, and our centuries old democratic processes upheld.”

Katy Watts, lawyer at Liberty, said: 

“No government should be able to wilfully ignore the rules at the expense of our fundamental human rights.

“The previous Government pursued an undemocratic anti-protest agenda, which saw the introduction of new laws preventing us from being able to speak out for what we believe in. Through the back door, then Home Secretary Suella Braverman attempted to go even further, restricting all protests deemed ‘more than minor’ and sidelining both Parliament and the public in making that decision. The High Court found this unlawful, and we are disappointed by the Government’s decision to continue the appeal.

“For the countless people currently in the over-stretched criminal justice system because of these unlawful regulations, we must see the law quashed and the Government respecting our fundamental right to protest.”

Victoria Pogge von Strandmann, Legal Director at Public Law Project, said:  

“The public deserves better than excessive and unlawful use of executive power. That is why we are back in court supporting Liberty this week with our intervention.

“By pushing far-reaching changes to anti-protest legislation through via statutory instrument in 2023, the former Government ignored Parliament rejecting these same changes just months earlier. After the High Court found this unlawful in May, we had hoped that the new Home Secretary would now abandon this unlawful and unconstitutional legislation, sending a message that secondary legislation should not be abused by lawmakers.

“This could have been the Government’s chance to rebalance the relationship between Parliament and the Executive, as well as protect the right to protest. Instead, the Home Office decided to continue the appeal.

“It is disappointing that we have to resort to the courts to keep defending parliamentary sovereignty and the rule of law this week. But we trust that this legislation will be found unlawful again and finally quashed for good.”