Court deals blow to Henry VIII powers

Under the Public Order Act 1986, the police can impose conditions on public processions and assemblies which they reasonably believe may result in ‘serious disruption to the life of the community’. The Police, Crime, Sentencing and Courts Act 2022 gave the Home Secretary power—often referred to as a ‘Henry VIII power’—to make regulations defining what this phrase meant.

In 2023, the then Home Secretary Suella Braverman introduced regulations giving the police power to restrict protests where the disruption was ‘more than minor’. A previous attempt to do this via amendments to the Public Order Bill was voted down in Parliament.

Ruling in R (on the application of the National Council for Civil Liberties) v Secretary of State for the Home Department [2025] EWCA Civ 571 last week, however, the court upheld the High Court’s ruling that the regulations were ultra vires.

Delivering the main judgment, Lord Justice Underhill said the words ‘serious disruption’ set a relatively high threshold for police intervention. Therefore, Braverman could not reasonably change this to mean ‘more than minor’.

The three appeal judges did not uphold the High Court’s decision that the government carried out an unfairly selective consultation. Underhill LJ said the government was entitled to seek the views of policing bodies but not protest groups as it was not a formal consultation.

Katy Watts, lawyer at Liberty, hailed the decision as a ‘victory for Parliament and the rule of law.’ Liberty has called on the government to review hundreds of arrests against Just Stop Oil and other protesters.

Shameem Ahmad, CEO of Public Law Project, which intervened in the case, said: ‘PLP believes the public deserves better than backdoor law-making that allows their fundamental rights to be diminished by ministerial decree.

‘The public deserves assurance that legislation impacting their daily lives has undergone Parliamentary debate and thorough scrutiny. These restrictive protest laws should now be permanently abandoned and Henry VIII powers relegated to the annals of history where they belong.’