The former home secretary Suella Braverman acted unlawfully in making it easier for the police to criminalise peaceful protests, the high court has ruled.
She was found to have both acted outside her powers and to have failed to consult properly over regulations that would be likely to increase prosecutions of protesters by a third.
Hundreds of protesters have been arrested since the government redefined the sort of protest that could be restricted by the police, allowing it where there is merely a “more than minor” hindrance to people’s daily lives.
Those prosecuted included the climate activist Greta Thunberg, who was acquitted of all charges in a hearing in February 2024.
In their judgment, Lord Justice Green and Mr Justice Kerr said the government had overreached in defining “serious disruption” as merely “more than minor” and that it had been wrong to consult only with law enforcement agencies about the repercussions of the change.
The Home Office said it would appeal against the ruling. The high court has suspended the reversal of the measures until after the outcome of the appeal.
Shortly before her resignation last year, Braverman used so-called Henry VIII powers to lower the threshold for the police to impose restrictions on protests.
Regulations brought in by such means, named in reference to the monarch’s preference for legislating directly by proclamation, are subject to minimal parliamentary scrutiny and decided on an “all or nothing” basis without amendments.
The change, redefining what could be regarded as “serious disruption” and therefore liable to conditions, had been made after the House of Lords had rejected the same change, proposed months earlier in a heavily debated and scrutinised new Public Order Act.
In their legal challenge to the regulations, the National Council for Civil Liberties, also known as Liberty, argued that they represented “a constitutionally unprecedented attempt on the part of the executive to achieve by the back door through delegated legislation what it was unable to achieve by the front”.
In justifying the government’s move, the current home secretary, James Cleverly, had argued that no new offences or powers of a criminal nature had been created.
Green and Kerr said that while “technically correct”, the home secretary’s regulations had increased the risk to protesters of being judged to have acted criminally.
They found that the “government was aware that this was likely to increase the number of conditions imposed by the police by up to 50% and that prosecutions would increase by circa one-third”.
They wrote: “We find no sensible difference between amending a criminal offence in a manner that increases the number of people likely to be prosecuted and amending the legal framework for the application of an offence which has the effect of increasing the number of people likely to be prosecuted.”
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They also said that the government’s consultation, which had been limited to the law enforcement agencies, had been inadequate as it failed to engage with any organisations that would oppose the measures.
Conducting a fair consultation “would not have been unduly burdensome”, the court ruled. “Government consultations are relatively short in duration.”
Liberty has called on the police to refrain from using the powers until the appeal has been heard and for prosecutions under the law to be put on hold pending the appeal.
Akiko Hart, Liberty’s director, said: “This ruling is a huge victory for democracy, and sets down an important marker to show that the government cannot step outside of the law to do whatever it wants.
“We all have the right to speak out on the issues we believe in, and it’s vital that the government respects that.
“These dangerous powers were rejected by parliament yet still sneaked through the back door with the clear intention of stopping protesters that the government did not personally agree with, and were so vaguely worded that it meant that the police were given almost unlimited powers to shut down any other protest too.
“This judgment sends a clear message that accountability matters, and that those in power must make decisions that respect our rights.”
