It has been argued that the preparedness of the courts to declare governmental action unlawful is vital to the rule of law. Well, up to a point, Lord Copper. Yesterday’s High Court decision which annulled new police powers to control protests shows that there might be two sides to this, especially when you find yourself on the school run behind a deliberately dawdling crocodile of JSO protesters or in front of a a bunch of XR zealots lying in the road.
The rule of law is all very well, but progressives cannot be allowed to have it all their own way
The background to the episode is boringly legalistic. (Please accept apologies in advance.) The Public Order Act of 1986 allows the police compulsorily to divert a procession or gathering, or exclude it from any public place, to avoid serious disruption to the life of the community. By 2022 it emerged that it was unclear whether JSO or XR gatherings caused ‘serious disruption’, and that police were therefore playing safe when it came to using the 1986 powers against them. A 2022 change to the 1986 legislation therefore introduced a Henry VIII clause allowing the Home Secretary to issue regulations which would amend the law by making clear what did count as serious disruption. Chris Philp, minister of state at the Home Office, did just that. His regulations stated that serious disruption included, among other things, ‘the prevention of, or a hindrance that is more than minor to, the carrying out of day-to-day activities (including in particular the making of a journey)’ –making it clear that small-scale road-blocking could be curtailed.
It was these regulations that the High Court yesterday overturned. In its lawyer-like way it decided, in effect, that the Home Secretary could not define as ‘serious disruption’ anything that the court did not think was in fact serious. And, in addition, that having discussed the matter with the police, he could not regulate without also consulting supporters of would-be protesters.
Very good, some might say: it’s a simple case where the government got its law wrong, and the courts have rightly called it out. The progressive establishment is saying just that. But there is more to the issue.
The point to note is, as even an educated non-lawyer can see, there was nothing inevitable about all this. Administrative law is in fact remarkably flexible. The court could perfectly plausibly have decided (for example) that on a proper interpretation of the Henry VIII clause in the legislation, the Home Secretary’s view of what should count as serious should prevail over a literal reading of the word, and that talking to the police who had to enforce the law did not carry with it an obligation to consult those who might later try to break it. In other words, what we have here goes beyond a simple case of judicial oversight. If it is not judicial activism, it inclines very much that way. And while the former is something most will support, the latter is decidedly controversial. The rule of law is all very well, but progressives cannot be allowed to have it all their own way.
Indeed, in this case there are good reasons why the radicals should not have it their way. An important feature of the rule of law, especially when it comes to police powers to control the boundaries of acceptable and unacceptable disruption, is predictability. Protesters and police need to know where they stand, as for that matter does the often-forgotten class, the general public going about their business. If anything, this should be a strong steer to the courts against invalidating regulations that were, after all, meant to clarify what protesters were and were not allowed to do.
Furthermore, it is not as if there was a lack of democratic scrutiny. The regulations were approved by the House of Commons, and in the end by the Lords – unweillingly in the latter case, but that does not alter the situation.
As it is, we now have the worst of all worlds. There is now no certainty about what the law on the right to protest is. The Public Order Act on the government legislation website says one thing. But according to a High Court judgment the provisions inserted into it by the Home Office are to be ignored, and we have to read the Act as it appeared before the changes. But the judgment is itself under appeal; if the Court of Appeal thinks differently in a few months’ time the new provisions are valid after all. The poor constable faced with all this deserves your sympathy. But he also deserves your understanding when, faced with a stand-off between angry motorists and protesters determined to make life as difficult as possible for them, he declines to intervene.
Meanwhile, despite the fact that the Home Secretary has produced regulations of exactly the kind envisaged when the public order legislation was amended, and despite those regulations having been approved by both the Commons and the Lords, apparently nothing changes. For the next few months at least, until either the government runs a successful appeal or manages to get primary legislation past an increasingly obstructive House of Lords, the disruptive cults of JSO and XR seem destined to have a field day. It is a fair bet that you will have to allow a good deal extra for that school run.
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