Herbert Smith Freehills represents Public Law Project in intervention in public protest case

Herbert Smith Freehills has represented its client Public Law Project, on a pro bono basis, in its intervention in the high-profile case of R (Liberty) v. Secretary of State for the Home Department [2024] EWHC 1181 (Admin), 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 last year that restricted the right to public protest.

Liberty challenged the lawfulness of the Government's secondary legislation, with The Public Law Project 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 ruling, Lord Justice Green and Mr Justice Kerr upheld Liberty's challenge. The court found that the regulations introduced by the Secretary of State went beyond the specific legislative power to amend the definition. The power could only be exercised where there was a proper connection or nexus with the concept of seriousness. Considering the ordinary and natural meaning of the words, "serious" refers to a point relatively high up on the scale, and "more than minor" is materially lower down the scale than "serious". The court also found that the government's engagement with various policing groups prior to making the regulations amounted to a one-sided and unfair consultation.

The regulations (and accordingly the lower threshold for police intervention) were therefore found to have been unlawful. The regulations currently remain in force pending the outcome of appeal by the Government.

The Herbert Smith Freehills team comprised Partner Nusrat Zar, Professional Support Consultant Jasveer Randhawa, Pro Bono Counsel Lara Nassif, Senior Associate Chloe Woodward and Associates Daniel de Lisle and Benjamin Caddaye.

Herbert Smith Freehills has a significant history of providing pro bono legal services to clients including charities, NGOs, the governments of developing nations and marginalised individuals.