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A recent judicial review clarifies the rules relating to voluntary consultations

Posted on 1 July 2024

On 21 May 2024, the Administrative Court handed down its decision in the judicial review of R (on the application of National Council for Civil Liberties) v Secretary of State for the Home Department.

The claim was brought by the National Council of Civil Liberties (Liberty) last year in response to the Government enacting regulations which had the effect of lowering the threshold for police intervention in processions and assemblies by protesters. 

Liberty’s application was successful on two of the four grounds pleaded.  

The case serves as a reminder of the importance of meaningful consultations in the legislative process, even if the consultation is stated to be informal and voluntary.

Background to the claim

With COVID-19, the death of Sarah Everard, the Israel-Gaza conflict and increasing climate activism, the policing of protests has become a topic of fractious debate. The police has been criticised for being both heavy handed and for failing to take action to ensure public safety.  Police stakeholders reacted by referring to a "lack of clarity as to the circumstances in which conditions [could] be imposed on public processions and assemblies, in particular in relation to the point at which the police could assess that a procession or assembly may result in serious disruption."1

The power for police to impose conditions on public possessions and public assemblies is conferred by sections 12 and 14 of the Public Order Act 1986 (the POA 86). Such powers are exercisable only if an officer reasonably believes that a procession or assembly may result in "serious public disorder, serious damage to property or serious disruption to the life of the community."  No definition is provided for what is meant by 'serious disruption'. 

In 2022, the Police, Crime, Sentencing and Courts Act 2022 (the PCSCA) amended the POA 86 to grant the Secretary of State power to amend the definition of 'serious disruption' by means of secondary legislation. In a statement to Parliament when the PCSCA was being debated, the Minister affirmed that "the threshold will be clarified, not changed" but that it was about "putting the framework in place to help the police on the ground."

Having failed to get proposed amendments past the House of Lords, the Government used the so-called 'Henry VIII power' to lay Regulations seeking to define 'serious' as 'anything more than minor'. The Regulations largely mirror the provisions rejected by the House of Lords.

The draft Regulations came into force on 14 June 2023.  

Successful grounds of appeal

The Regulations are ultra vires

The court held that, in adopting the conventional approach to interpretation which considers the ordinary and natural meaning of words, 'more than minor' is not within the scope of the word 'serious'.  In line with the Minister’s statement to Parliament, the enabling power (under the PCSCA) was limited to using regulations to clarify the word 'serious' and did not extend to altering the threshold.

The Regulations are unlawful because they are the result of an unfair consultation process.

On 1 December 2022, a roundtable meeting, comprised of representatives of law enforcement bodies, was held at 10 Downing Street. 

The Home Office subsequently put forward a proposal to “introduce a measure to amend the meaning of 'serious disruption to the life of the community”.  The Government was not legally obliged to consult stakeholders on the proposed draft Regulations and, as such, it referred to its discussions with law enforcement as ‘engagement’.  However, the draft Explanatory Memorandum, which accompanied the draft Regulations laid before Parliament, included a paragraph titled 'Consultation Outcome' which described the steps that had been taken to consult law enforcement agencies "on how to improve the response to highly disruptive protests at a roundtable chaired by the Prime Minister."

In a witness statement responding to Liberty’s claim, the Home Office representative explained that the drafter had not intended to refer to 'consultation' but that the error had occurred as he had been working from a 'standard template'.

The court held that, given the above language and the process followed, the Government had engaged in a voluntary consultation process. This was differentiated from the process followed in R (Eveleigh) v Secretary of State for Work and Pensions [2023] EWCA Civ 810. In that case a survey to ascertain the views of individuals on a general policy commitment, at a high level of abstraction, was held not to be of sufficient substance to be considered a consultation process.

It is well established that, where a consultation exercise is carried out, it must be conducted 'properly and fairly'. The criteria for what constitutes a proper and fair consultation are set out in the case of R v Brent London Borough Council, ex p. Gunning (the Gunning Criteria). However, the court held that the Gunning Criteria do not necessarily embody the totality of the requirements in all cases where consultation is undertaken on a voluntary basis; what fairness demands is a question of fact in each case.

The court held that the procedure applied was not fair, for the following reasons:

  1. The proposals assumed an increased exposure to criminal sanctions.
  2. Fundamental common law rights were engaged, i.e. the right to protest.
  3. There was a readily identifiable class of adversely affected bodies and persons with whom the Government could have engaged.
  4. The proposals were at an advanced, but formative, stage when the Government consulted with law enforcement – the same process could have been followed with other interested parties.
  5. A broader consultation could have improved the quality of the Regulations both in terms of enforcement and clarity.
  6. Conducting a broader consultation would not have been onerous or disproportionate.
  7. Parliamentary debate does not negate the value – or need for – consultation.
  8. The Secretary of State's floodgate arguments were rejected by the court.
  9. While a 12-week period is generally considered adequate, the court noted that the complexity of the subject matter and the potential impact of the Bill warranted a more thorough engagement process.

The ruling has significant implications for the government's legislative process, particularly in areas of national security where there is a high public interest. It reinforces the principle that consultations must be more than a tick-box exercise and should facilitate an informed and constructive dialogue between the government and the public.

While the reversal of the measures has been stayed in light of the Government’s indication that it intends to appeal the ruling, a new party in Government could see the High Court’s decision left to stand.   

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