Human Rights Act, ECHR and Government accountability / Protest rights


Posted on 28 Feb 2024

  • Liberty v Home Secretary: 28-29 February 2024, Royal Courts of Justice
  • Legal action by Liberty challenges Government decision to sign off anti-protest laws previously rejected by Parliament
  • Court urged to quash laws for being “undemocratic, unconstitutional and unacceptable” 

The High Court has today heard that the Government broke the law by forcing through anti-protest legislation which had already been democratically rejected by Parliament just a few months earlier.

Liberty, the human rights organisation bringing the legal challenge, has urged the court to quash the legislation which gives the police almost unlimited power to shut down protests it deems as causing a ‘more than minor’ disturbance.

Liberty says the Government deliberately circumvented the will of Parliament and unconstitutionally breached the principle of separation of powers.

The new laws were pushed through by Suella Braverman during her time as Home Secretary. The case is now against the new Home Secretary, James Cleverly, who has the power to reverse Braverman’s actions if he wants to.

Liberty argues Braverman and the Government acted unlawfully by using a statutory instrument to change the Public Order Act 1986 in June last year (14 June 2023) to give police powers to restrict protests which cause “more than minor” disruption – a significantly lower threshold than the previous definition of “serious disruption”.

Braverman and the Government forced this change through despite the fact an amendment attempting to do the exact same thing was voted out of the Public Order Act 2023 by Parliament just a few months before (30 January 2023).

Liberty says Braverman and the Government were not given the powers by Parliament to take this action – making it a serious overreach which violates the constitutional principle of the separation of powers.

Statutory instruments are a way to bring a new law in without having to create a whole new bill, and are rarely voted down by Parliament. Between 1950 and 2007, only 0.01% of the total number of statutory instruments laid before parliament were rejected. A cross party parliamentary committee recently said this is the first time a government has sought to makes changes to the law through a statutory instrument which have already been rejected by Parliament when introduced in primary legislation.

Since the changes were forced into law there has already been the high profile acquittal of Greta Thunberg and other protestors wrongly charged under the new powers.

Akiko Hart, Liberty’s Director, said: 
“The Government has forced through a law it had no power to create. This is undemocratic, unconstitutional, and unacceptable – and we’re in court today to stop it.

“No government can be untouchable, and in a functioning democracy there must be effective checks and balances on a government’s power to ensure it governs in the people’s interest. Protest is one of these checks and balances, but the Government has handed the police almost unlimited powers to stop any protest it doesn’t agree with.

“The Government’s actions are part of a coordinated attempt to put itself above the law and become untouchable. It is shutting down the ways people can hold it to account – whether that’s in Parliament or on the streets.

“We’ve taken legal action to ensure no government is allowed to get away with breaking the law – and we urge the court to quash these dangerous new powers.”

Katy Watts, Liberty lawyer leading the case, said: 
“Our democracy exists to make sure a government can’t just do whatever it wants – but the Government’s actions make a mockery of this and of our centuries-old parliamentary system.

“The UK has the longest unbroken democracy in the world, but it rests on the separation of powers between the Government, Parliament and the courts. The Government’s actions are a flagrant breach of that separation of powers and cannot be allowed to go unchecked.

“The fact this is the first time a government has ignored a decision of Parliament to make laws in this way shows just how desperate those in power are to put themselves above the law.”

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