Herbert Smith Freehills has represented its client Public Law Project (PLP), on a pro bono basis, in its intervention in the high-profile Court of Appeal case of R (Liberty) v. Secretary of State for the Home Department, in which civil liberties and human rights group Liberty successfully challenged the UK Government’s use of a statutory power to make secondary legislation, in relation to regulations in 2023 that restricted the right to public protest.

Liberty challenged the lawfulness of the Government’s secondary legislation, with PLP providing assistance to the High Court in support of Liberty’s challenge by way of written and oral submissions, in light of its expertise on the role of secondary legislation in the UK’s constitutional structure.

In 2023, the Government had used a power granted by Parliament in the Police, Crime, Sentencing and Courts Act 2022 to amend the definition of “serious disruption” in the Public Order Act 1986, to mean disruption that was “more than minor”, effectively lowering the threshold for police intervention in public protest.

In its judgment earlier this month, the Court of Appeal agreed with Liberty and PLP’s position that the Public Order Act’s wording is intended to set the threshold for police intervention at a relatively high level. The Court agreed with Liberty and PLP’s concerns about the way that so-called ‘Henry VIII powers’ had been used, and it supported PLP’s argument that Parliament did not intend to give the Secretary of State these powers.

The regulations (and accordingly the lower threshold for police intervention) were, therefore, found to have been unlawful.