Regulations which lowered the threshold for police intervening in protests were unlawful, the High Court has ruled.
Civil liberties group Liberty brought legal action against the Home Office over protest regulations passed by statutory instrument last year.
The Government measures lowered the threshold for what is considered “serious disruption” to community life, from “significant” and “prolonged” to “more than minor”.
They also allowed police officers to take into account “any relevant cumulative disruption” of repeated protests.
The regulations came after the Government tried to introduce the same changes when the Public Order Bill went through Parliament, but they were rejected by the Lords at the time by 254 votes to 240.
The step to restore the provisions by statutory instrument, which faces less scrutiny than primary legislation, was criticised at the time but passed last year.
At a hearing in February, lawyers for Liberty asked the High Court to quash the “unlawful” provision.
And in a ruling on Tuesday, two judges ruled for the group, finding the Home Office acted outside of its powers by reducing the threshold and failed to carry out a fair consultation process.
Lord Justice Green and Mr Justice Kerr said: “As a matter of ordinary and natural language ‘more than minor’ is not within the scope of the word ‘serious’.”
The judges continued: “Under section 2A(b), when considering whether a public procession or assembly may result in ‘serious disruption to the life of the community’ a senior police officer ‘must’ take into account all relevant disruption and ‘may’ take into account any relevant cumulative disruption.
“If we are correct in our conclusion that ‘serious’ does not include ‘more than minor’, that affects how the police apply the connected concepts of ‘disruption’ and ‘cumulative’ because it is critical context to those provisions.”
A Home Office spokesperson said the department were “disappointed by this outcome”.
As the regulations were approved, then-home secretary Suella Braverman argued the changes would provide “further clarity” for police.
She told MPs in June 2023: “People have a right to get to work on time free from obstruction, a right to enjoy sporting events without interruption and a right to get to hospital.
“The roads belong to the British people, not a selfish minority who treat them like their personal property….In some cases the protests have aggravated the public so much that they’ve taken matters into their own hands.
“They’ve lost their patience, the police must be able to stop this happening and it’s our job in Government to give them the powers to do so.”
Ms Braverman lost her job after branding pro-Palestinian protesters “hate marchers” and accusing the Metropolitan Police of bias for letting a rally go ahead on Armistice Day, and has since called for ministers to be given the power to ban protests outright.
During the hearing in February, lawyers for Liberty said the decision to make the regulations included a “one-sided, unfair consultation” with a “narrow” group of stakeholders, including the Metropolitan Police and the National Police Chiefs’ Council.
In the 57 page judgment, the judges said that fairness was needed in a consultation.
Lord Justice Green and Mr Justice Kerr concluded: “Applying a broad standard of fairness we conclude that fairness required a balanced, not a one sided, approach, and the procedure adopted was not fair.”
Akiko Hart, Liberty’s director, said after the decision: “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.”
The judges granted the Home Office permission to appeal against the ruling and said any challenge should be expedited.
The Prime Minister’s official spokesman said: “We’ve said before that the right to protest is fundamental to democracy, but we simply will not tolerate intimidation or serious disruption of the law-abiding majority, and that is why we legislated to clarify the definition of serious disruption and give police the confidence they need to tackle serious disruption, and tackle the scenes that we saw last summer, where, you know, ambulances were being delayed and people’s lives were being disrupted.
“We’re obviously disappointed by this outcome. We will consider all options to keep this important power for police, including appealing the judgment if necessary.”
A Home Office spokesperson said: “While we are disappointed by this outcome, we are pleased that we have been granted permission to appeal and we will consider all other options to keep this important power for police.
“The right to protest is a fundamental part of our democracy but we must also protect the law-abiding majority’s right to go about their daily lives.
“That is why we legislated last year to give the police the tools they need to address disruptive protests.”
