“If the senior police officer “The senior police officer” is defined in subsection (2), but the definition is immaterial for our purposes. , having regard to the time or place at which and the circumstances in which any public procession is being held or is intended to be held and to its route or proposed route, reasonably believes that— (a) it may result in serious public disorder, serious damage to property or serious disruption to the life of the community [my italics], or (b) the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do, he may give directions imposing on the persons organising or taking part in the procession such conditions as appear to him necessary to prevent such disorder, damage, disruption or intimidation, including conditions as to the route of the procession or prohibiting it from entering any public place specified in the directions.”
“For the purposes of subsection (1) (a), the cases in which a public procession in England and Wales may result in serious disruption to the life of the community include, in particular, where — (a) it may result in a significant delay to the delivery of a time-sensitive product to consumers of that product, or (b) it may result in a prolonged disruption of access to any essential goods or any essential service, including, in particular, access to — (i) the supply of money, food, water, energy or fuel, (ii) a system of communication, (iii) a place of worship, (iv) a transport facility, (v) an educational institution, or (vi) a service relating to health.”
“(12) The Secretary of State may by regulations amend any of subsections (2A) to (2C) for the purposes of making provision about the meaning for the purposes of this section of — (a) serious disruption to the activities of an organisation which are carried on in the vicinity of a public procession, or (b) serious disruption to the life of the community. (13) Regulations under subsection (12) may, in particular, amend any of those subsections for the purposes of — (a) defining any aspect of an expression mentioned in subsection (12) (a) or (b) for the purposes of this section; (b) giving examples of cases in which a public procession is or is not to be treated as resulting in — (i) serious disruption to the activities of an organisation which are carried on in the vicinity of the procession, or (ii) serious disruption to the life of the community.”
“I now turn to the parts of the clauses that set out that the Home Secretary will have the power, through secondary legislation, to define the meaning of ‘serious disruption to the life of the community’ and ‘serious disruption to the activities of an organisation which are carried on in the vicinity of the procession’, or assembly or single-person protest. Again, to clear up any misunderstandings, this is not about the Home Secretary of the day banning protests. Opposition Members have understandably called for clearer definitions wherever possible, which is what this delegated power is intended to achieve. Any definition created through this power will need to fall within what can reasonably be understood as ‘serious disruption’. The threshold will be clarified, not changed: such definitions will be used to clarify the threshold beyond which the police can impose conditions on protests, should they believe them necessary to avoid serious disruption. This is about putting the framework in place to help the police on the ground.”
“48. … For reasons set out below we conclude that ‘serious’ was intended to indicate a relatively high threshold consistent with the ordinary and natural meaning of that word. 49. We rely upon: (i) the ordinary natural meaning of ‘serious’; (ii) the application of the de minimis principle of construction; (iii) the context to the legislation; (iv) extrinsic material relevant to interpretation including the White Paper which preceded the bill; and (v) guidance from other cases and legislative sources including on the word ‘serious’ where Parliament has used an adjective to qualify and limits the meaning of a noun.”
“‘Serious’ in ordinary parlance connotes something towards the top end of the scale. Dictionary synonyms of the adjective are consistent with this and include: severe, grave, big, and major. …”
“An important part of the context was therefore that Parliament balanced carefully these ‘long established’ rights against competing interests and sought to set the threshold for state intervention at a high level. Use of the adjective ‘serious’ in common parlance, performs this task.”
“… [T]he expression ‘serious’ is intended to set the threshold for police intervention at a relatively high level. This reflects its ordinary and natural meaning, its purpose and context, and is a conclusion consistent with admissible extrinsic material. It reflects the important balance to be struck between the right of free speech, assembly and protest, on the one hand, and the orderly conduct of society, on the other.”
“The word ‘serious’ refers to a point relatively high up on the scale. In our judgment, as a matter of common parlance and in view of the case law and other legislative comparables, ‘more than minor’ is different from and materially lower down the scale than ‘serious’. It would not on a natural and ordinary meaning be treated as falling within the scope of ‘serious’, however generously construed. We also see force in the argument of Liberty and PLP that Parliament, when it adopted the enabling power, 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 and materially to increase the exposure of protestors to criminal proceedings. This was something to be addressed by primary legislation, if it was to happen at all.”
“25. … When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament. 26. The interpretation of the statutory provision conferring a power to make secondary legislation is, of course, to be effected in accordance with normal principles of statutory construction. However, in the case of an ‘amendment that is permitted under a Henry VIII power’, to quote … from [Craies on Legislation (10th ed (2015))] para 1.3.11: ‘as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature's contemplation.’ 27. In two cases, R v Secretary of State for Social Security, Ex p Britnell[1991] 1 WLR 198 , 204 and R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd[2001] 2 AC 349 , 383, the House of Lords has cited with approval the following observation of Lord Donaldson MR in McKiernon v Secretary of State for Social Security, The Times, November 1989; Court of Appeal (Civil Division) Transcript No 1017 of 1989, which is to much the same effect: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’ 28. Immediately after quoting this passage in Spath Holme, Lord Bingham went on to say ‘[r]ecognition of Parliament's primary law-making role in my view requires such an approach’. He went on to add that, where there is ‘little room for doubt about the scope of the power’ in the statute concerned, it is not for the courts to cut down that scope by some artificial reading of the power.”
“It is confirmatory of a construction of the power as limited to amendments which do not lower the threshold for police intervention. The use of the ministerial expression ‘reasonably be understood’ should be read in this context and as a fair, everyday, proxy for the ordinary and natural meaning of the words. In our judgement something which is ‘serious’ cannot reasonably encompass anything that is merely ‘more than minor’.”
“For all of the above reasons Ground I succeeds. The conventional approach to interpretation is to start with the ordinary and natural meaning of the words and, having formed a conclusion upon that question, consider other guides to interpretation to see whether they are consistent with the conclusion arrived at. This is the approach we have adopted. As a matter of ordinary and natural language ‘more than minor’ it is not within the scope of the word ‘serious’. That conclusion is consistent with, and confirmed by: the purpose and context to [the 1986 Act]; principles of construction applicable to Henry VIII powers; considerations of legal certainty; the inpari materia principle of interpretation; and, extrinsic considerations such as the Ministerial statement in Parliament. Our conclusion is not affected by the fact that the Regulations were subject to scrutiny in the course of the affirmative resolution procedure. It follows that the Regulations are ultra vires the enabling power contained within sections 12 (13) This must be a slip for “12 (12)”. and 14 (11) [of the 1986 Act].”
“The Court erred in law in concluding that thePublic Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 … were ultra vires the enabling provisions in sections 12 (12) and 14 (11) of thePublic Order Act 1986 …: a. Contrary to the Court’s findings, the power given to the Secretary of State to make regulations ‘about the meaning … of … serious disruption to the life of the community’ includes the power to adopt any linguistically tenable definition of ‘serious disruption’, including by reference to disruptions that are ‘more than merely minor’. The power is not limited to merely clarifying the meaning of ‘serious disruption’ in the Act. b. Further, there was no proper basis for the other matters relied on by the Court below to support the very significant narrowing of the permissible spectrum of meanings of the concept of ‘serious disruption’ which its analysis entailed.”
“35. It is of some concern to the Parliamentary Authorities that they did not become aware of the extensive use of Parliamentary materials in these proceedings until the publication of the Divisional Court judgment on21 May 2024 . This was despite the Divisional Court itself having indicated – albeit in the context of an issue not arising in this appeal – that ‘[i]n past cases where Article 9 has been live Parliament has on occasion appeared before the Court to make submissions’ and ‘[w]e would have welcomed such assistance’: [129]. 36. Without criticism of any party or of the Divisional Court, the Parliamentary Authorities would respectfully recall the mechanisms by which either House of Parliament may be notified where issues of Parliamentary privilege arise. 36.1 First, any party may write to Speaker’s Counsel, in the House of Commons, or to Counsel to the Chairman of Committees, in the House of Lords, identifying the issue which has arisen, to enable the relevant Parliamentary Authority to take a view on whether an intervention is likely to assist the Court. 36.2 Second, the Court may of its own motion inform Speaker’s Counsel or Counsel to the Chairman of Committees where an issue of privilege arises and invite the relevant Parliamentary Authority to intervene (or apply to intervene) if appropriate – as occurred in R (Project for the Registration of Children as British Citizens)[2021] 1 WLR 3049 (see [1]). 37. Given the course of events in these proceedings, the Parliamentary Authorities would respectfully invite the Court in its judgment to encourage the use of either or both of these mechanisms in appropriate cases.”
“… [I]n purporting to define the word ‘community’ in sections 12 and 14Public Order Act 1986 …, the Regulations are ultra vires because they go beyond the enabling power by defining ‘the community’ by reference to a wider class of affected persons than contemplated by the enabling power.”
“… [T]he definition of ‘community’ does not, in our judgment, unlawfully replace the concept of ‘the community’ in [the 1986 Act] with a different and narrower concept of a ‘community’ in the Regulations. Again, the purpose of the provision is to clarify, in the context of a procession or assembly, that it may have no disruptive impact on persons far from the scene and having no involvement in it. The generalised sense of the word in other contexts (e.g. in emergency powers legislation empowering regulations ‘for maintaining supplies and services essential to the life of the community’) is not apt in the present context. The definition of ‘community’ in the Regulations makes explicit the point that the disruption need not be to the public generally; it may be to a limited class of persons affected by a procession or assembly. We do not consider that when read in context the omission of the definite article from the definition makes any difference.”
“40. … On the Secretary of State’s case as to the scope of the enabling power, this aspect of regulation 2(2) is intra vires. The concept of ‘the community’ does not have an established or natural meaning. Depending on context, ‘the community’ may denote a community that is national, regional, local, international, or a particularly affected group. The [Convention] and Emergency Powers legislation are not a useful or relevant guide to the range of possible meanings that the Secretary of State may ascribe to the words ‘the community’ or the word ‘community’ in the context of the 1986 Act. The meaning chosen was one the Secretary of State was entitled to use. 41. Furthermore, even if the Secretary of State’s power were limited to clarifying (rather than changing) the meaning of ‘the community’ in the Act, the Divisional Court was right to find … that the purpose of this aspect of regulation 2(2) was to ‘clarify, in the context of a procession or assembly, that it may have no disruptive impact on persons far from the scene and having no involvement in it’. It is both obvious and necessary to construe ‘the community’ so as to enable restrictions to be placed on processions or assemblies that cause serious disruption to a particular local area or a class of affected persons, even if the procession or assembly does not have wider repercussions for the public generally (or the community at a national level).”
“152. The law governing the obligation to undertake public consultation is now reasonably well settled. A public body or decision maker owes no general duty in all cases to consult interested persons before deciding upon a measure. But the decision maker may become subject to such a duty in certain circumstances. A duty to consult may be enacted by a statutory provision. If the duty is statutory, the scope of the obligation is determined primarily by the terms of the statute. The process ordained in the statute must be followed and must, in addition, be undertaken in a fair manner. 153. A duty to consult may arise at common law in the second, third and fourth cases identified in the judgment of the court in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice[2014] EWHC 1662 (Admin) , at paragraph [98(2)] where: (i) there has been a promise to consult; (ii) there has been an established practice of consultation; and (iii), where exceptionally a failure to consult would lead to conspicuous unfairness. … It is unnecessary to examine the boundaries of those categories. Liberty does not submit that the present case is within any of them.”
“It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC ex parte Gunning[1986] 84 LGR 168 ).”
“I do not accept the submission that a decision-maker can routinely pick and choose whom he will consult. A fair consultation requires fairness in deciding whom to consult as well as fairness in deciding the subject matter of the consultation and its timing.”
“It should be stressed ... that engaging with policing stakeholders in this manner is routine for policy officials when dealing with any specific policy area that may affect operational policing.”
“We are working with OPC [the Office of Parliamentary Counsel] to further clarify these clauses, but in parallel, we would like to gain your input from a police perspective. As such, I have written below some explanations and thoughts on parts the drafted clauses, as well as flagging key areas where we [sic] your thoughts would be helpful.”
“As with the meeting on 7 December, this type of engagement is not indicative of a consultation and is routine among officials when handling policy matters that will have a material impact on policing.”
“10.1 The National Police Chiefs Council, the Metropolitan Police Service, the Police and Crime Commissioners of the police forces whose areas include the M25, and National Highways were consulted on how to improve the response to highly disruptive protests at a roundtable chaired by the Prime Minister. 10.2 Both the National Police Chiefs Council and the Metropolitan Police Service welcomed a commitment to bring further clarity to the meaning of ‘serious disruption to the life of the community’. Drafts of the proposed amendments to the Public Order Bill … were shared with and commented on by both organisations. As set out in this Explanatory Memorandum, those amendments provided the basis for the changes made by the instrument.”
“A full consultation was not necessary as the provisions in this instrument serve to clarify existing police powers and do not create new powers or criminal offences. Instead, targeted engagement with operational leads was held.”
“That recent and comprehensive consultation in 2009 is in my judgment the key to the decision in the present situation. The Secretary of State was minded to make the orders challenged notwithstanding the strong, articulated objections to them by local planning authorities, of which he was aware. The decision to make them was a political decision which the Secretary of State was entitled to make. In the circumstances, he was then entitled, first, to make the consultation a limited one and, secondly, to decide that there was no evidence of significant new issues arising, which required fuller consultation.”
“His submission is that there never was a consultation exercise. There was no statutory obligation to consult and the Government was not choosing to consult over whether the decision to reduce fees should be taken, it was simply engaging with an interested party in a way which it considered to be beneficial to its decision making.”
“43. … Contact with interest groups (or ‘stakeholders’, I think it is, given the modern spin) is the very warp and woof of democratic government; it is central to decision making. It means that Government is better informed of the implications of the different options, and will more likely to be made aware of potential pitfalls, political or otherwise, which the decision may create. But it cannot be the case that every time a minister deals with one group, he or she must hold a similar meeting with a group holding the opposite view. It must be for Government to decide what information it requires, and from what source and at what time, in order to facilitate its decision making. If the Government decides to enter into a formal consultation process, that exercise must satisfy the Gunning requirements if it is to be fair and meaningful. But, in my view, a court cannot justifiably infer that a minister has entered into a consultation exercise merely because a decision is taken after a meeting with a particular interest group, even where representations from that group have, in fact, proved decisive. The purpose of the meeting may have been to clarify a particular matter, or to gauge the strength of the group’s opposition to a proposed decision, or simply so that the Government will be able to trumpet that group’s support for the decision when it was announced. None of this could remotely be said to amount to consultation with all the baggage inherent in that process. 44. I agree with [counsel for the Secretary of State] that there is no principled basis for determining when the process amounts to consultation and when it involves discussions falling short of that. If a government is persuaded to a view as a result of information volunteered to it, [counsel for the claimants] accepts that that would not be consultation. But is it different if the Government solicits the same information? And if the Government seeks an exchange of views with one body, must it necessarily do so with respect to other potentially interested parties whenever it finds those views persuasive? And how do we determine whether it has found those views decisive? In my judgment, there is no safe mooring for the principle on which [counsel] relies. It is not the function of the courts to map out the way in which Government approaches its task of decision making. If the Government chooses to go down the road of formal consultation, then the courts have the obligation to make sure it is fairly carried out, but in my judgment they should go no further than that. 45. The process of government would, in my view, grind to a halt if the nature of a government’s obligations were as outlined by [counsel for the claimants]. Government must be able to take advice, obtain information, secure undertakings, and garnish support from various interest groups without being required to treat their polar opposites in precisely the same way. This is not unfair: it is simply practical governance. If Government is perceived to be deaf to some interest groups but not others, or unresponsive to interests to which it is ideologically unsympathetic, that is a matter for the ballot box; it is not a matter for the courts.”
“In order to obtain information to inform its new National Disability Strategy (‘the Strategy’), the Government launched the UK Disability Survey (‘the Survey’) which invited responses from disabled persons and their carers. Following the publication of the Strategy, the claimants brought a claim for judicial review, contending that the Secretary of State had failed lawfully to consult, via the Survey, before publishing the Strategy, with the result that the Strategy itself was unlawful. The judge allowed the claim and quashed the Strategy, holding that the Survey had been a consultation at common law and as such had been required to satisfy the four ‘Gunning criteria’, but had failed to satisfy the second Gunning criterion, which was that the proposer of the proposal being consulted on had to have given sufficient reasons for the proposal to permit of intelligent consideration and response. The Secretary of State appealed on the ground that the judge had been wrong to hold that the survey amounted to a consultation to which the Gunningcriteria applied.”
“81. As [counsel for the claimants] accepted, there is no magic in the word ‘consultation’. It is a word which in ordinary usage has a range of meanings. The mere use of that word cannot entail legal consequences, especially if that word is used by people who are not lawyers. For that reason, the repeated use by the Disability Unit of the word ‘consultation’ and the fact that the Survey was put on the Consultation Hub are legally irrelevant. As Simler J recognised in para 99 of R (FDA) v Minister for the Cabinet Office[2018] EWHC 2746 (Admin) whether, when a public authority engages with the public, that engagement attracts legal obligations is a question of substance, not form. 82. As Bean LJ pointed out during oral submissions, the Judge did not expressly explain what test he applied in deciding that the Survey was a consultation which attracted legal obligations. In my judgment, the Gunning criteria are based on self-evident assumptions about the characteristics of the exercise to which they are able, and are intended, to apply. If the exercise in question does not have those characteristics, the Gunning criteria cannot apply to it. It is therefore necessary to spell out those assumptions, as, contrary to [counsel’s] submissions, they do tell us a great deal about the characteristics of the exercise to which they are intended to apply. 83. All the cases in which the Gunning criteria have been held to apply are cases in which a public authority contemplated making a specific decision which would or might adversely affect a particular person or group of people. … 84. Unsurprisingly, it might be thought, the Gunning criteria therefore assume that a public authority is proposing to make a specific decision which is likely to have a direct (and usually adverse) impact on a person or on a defined group of people. The Strategy is not comparable with those proposed decisions. It is a different thing altogether: a series of general policy commitments which are at such a high level of abstraction that it is not easy to see their direct negative (or positive) impact on a particular person or group of people. So the Strategy is not obviously the type of intended decision to which the Gunning criteria can, or are intended to, apply. 85. The Gunning criteria also make two assumptions about the stage of the decision-making process at which they apply. The first is that there is a proposal to make a decision, which, while not inchoate, is at a sufficiently ‘formative’ stage that the views of those consulted might influence it. But the second assumption, which sheds light on what is meant by ‘formative stage’ in this context, is that the proposal has crystallised sufficiently that the public authority also knows what the proposed decision may be, and is able to explain why it might make that proposed decision, in enough detail to enable consultees to respond intelligently to that proposed course of action. … .”
“I agree with the judgment of Elisabeth Laing LJ. In particular I agree with her that the Gunning criteria only apply where a public authority is proposing to make a specific decision which is likely to have a direct (usually adverse) impact on a person or on a defined group of people. The proposal must be at a sufficiently formative stage that the views of those consulted might influence it, but also must have crystallised sufficiently that the public authority knows what the proposed decision might be, and can explain it in enough detail to enable consultees to respond intelligently to the proposed course of action.”
“Ground IV succeeds. A voluntary consultation process was undertaken. It was however one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.”
“… [T]he purpose of consulting goes beyond merely informing the reasoning in support of the eventual decision. Consultation should ensure that the decision is both of high quality and justly reached. Fairness in carrying out a consultation is part of procedural fairness in decision making more generally.” (ii). “Did the Secretary of State carry out a consultation exercise?”
“In those circumstances, we accept the submission of Liberty that the conditions for application of the Gunning criteria stated by Elisabeth Laing LJ, echoed by Bean LJ, in the Eveleigh case, are satisfied in this case. This was a case where the Secretary of State chose to consult.”
“[W]e take the law to be as stated by Elias LJ in the Milton Keynes case This is a slip: the reference is evidently to APIL. : there may be circumstances where a voluntary but selective consultation exercise will render a decision taken pursuant to it unlawful. Such cases might be relatively rare. The Court will tread with care in characterising as a consultation a process of Government engagement with those from whom it seeks advice.” (iv). “Did fairness require consultation of bodies representing the interests of protestors?”
“Applying a broad standard of fairness we conclude that fairness required a balanced, not a one sided, approach, and the procedure adopted was not fair. There are eight reasons for this.”
“… [T]he Court erred in concluding that the Secretary of State had embarked on a voluntary consultation exercise, and that the Regulations resulted from an unfairly one-sided consultation process: a. Contrary to the Court’s findings, no voluntary consultation exercise was undertaken by the Secretary of State. b. Even if a voluntary consultation exercise had been embarked upon, the Court erred in concluding that the standard of review (when assessing the Secretary of State’s decision as to who to consult) was fairness, rather than rationality. c. Finally, and in any event, [if], contrary to the Court’s findings, fairness did not require the Secretary of State to consult bodies representing the interests of protestors or to conduct the broad exercise that the Divisional Court appears to have contemplated.”