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Russell Fortt and Sir James Eadie KC acted for the Home Secretary in a challenge to the lawfulness of amendments to the Public Order Act 1986 brought about by statutory instrument (Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023) using so called Henry VIII powers, following rejection of the same amendments in primary legislation (Public Order Act 2023) by the House of Lords. The amendments reflected a desire by the government and police forces to clarify and strengthen police powers in the face of increasingly disruptive tactics by protest groups. Liberty challenged the vires of the Regulations on four grounds: (i) the enabling legislation provided a power to clarify the meaning of ‘serious disruption’ whereas the regulations changed the threshold and the meaning of that term by describing serious disruption as ‘more than minor’; (ii) the Regulations subverted Parliamentary sovereignty by reintroducing provisions which had been expressly rejected by Parliament; (iii) the Regulations circumvented the will of Parliament and lacked objective justification; (iv) there was an unfair consultation process because the Home Secretary had consulted with policing bodies but not interested parties such as Liberty.
The court (Green LJ and Kerr J) upheld grounds 1 and 4 and ordered that the Regulations be quashed. The matter is now subject to appeal due to be heard in the Trinity term pending which, the quashing order has been stayed.
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