The High Court has announced that human rights group Liberty can take home secretary Suella Braverman to court over anti-protest laws. Liberty says that her actions were unlawful – as she pushed through changes which parliament already rejected, in what the group calls the Tories’ latest “power-grab”.
Braverman’s draconian Public Order Act
As the Canary previously reported, the Tories brought in the Public Order Act earlier in the year:
The draconian Public Order Act was given royal assent on 2 May, dramatically increasing police powers to arrest protesters. The Home Office has already cited the new Act in threatening letters to anti-monarchists. The campaign group Republic received intimidating letters this week, listing the arrest powers under the new Act. Extinction Rebellion has also received similar threats.
In fact, the Guardian reported that one ‘senior’ insider, who knew about the discussions between the police and the government, confirmed that the Act had been brought into force early, ahead of the coronation on 6 May.
The new Public Order Act powers include penalties of a year in custody for blocking roads, railways and airports. In addition, protesters who use the tactic of locking-on could face up to six months in prison.
However, during the passage of the law through parliament the House of Lords rejected parts of it. Specifically, it refused to sign off on Braverman reducing the threshold of what constitutes “serious disruption” caused by protesters. This is the level at which police are allowed to try and stop demonstrations.
So, instead of accepting the House of Lords’ decision, Braverman pushed her changes through via the back door. In June, after the Public Order Act became law, the home secretary used secondary legislation to change it. This is where a minister can make changes to existing laws without having to get parliament to vote on it.
Groundbreaking – but not in a good way
At the time, Braverman’s move caused outrage. The cross-party House of Lords Secondary Legislation Scrutiny Committee said of her actions:
As far as we can ascertain, this is the first time a Government has sought to make changes to the law by making those changes through secondary legislation even though those same changes had been rejected by Parliament when introduced a short while before in primary legislation. This raises a constitutional issue as to the appropriate use by Government of secondary legislation, particularly as it arises in the context of an area of law which is important and attracts controversy.
As the Guardian reported, Labour’s home affairs spokesperson in the Lords – Vernon Coaker – said:
It is an absolute fundamental constitutional outrage, what has actually taken place. Primary legislation was defeated. So what does the government do? It doesn’t bring forward new primary legislation; it tries to sneak through, in an underhand way, secondary legislation without proper public consultation. They undermine the workings of our parliamentary democracy and, as such, it is shocking.
Of course, Labour’s outrage is performative – given it failed to support Green Party peer Jenny Jones’s fatal motion in the Lords which would have stopped Braverman.
So, the home secretary’s changes are currently law. The real-world implications of this are that police now have almost free rein to stop whatever protests they like. This is because the change Braverman made means they can now stop demonstrations even if they only cause “more than minor” disruption – whatever that may mean.
Liberty: see you in court
However, Liberty are not having it – and the High Court has agreed. It has said the group can bring a legal challenge to Braverman’s changes. Liberty said that:
the Home Secretary was not given the powers by Parliament to take this action, making her actions a serious overreach which violate the constitutional principle of the separation of powers because the measures have already been rejected by Parliament.
Liberty’s interim director, Akiko Hart, said:
This is just the latest power grab from this Government, which has shown it is determined to erode the ways people can hold it to account, whether that’s in Parliament or on the streets. The Home Secretary’s actions give the police almost unlimited powers to stop any protest the Government doesn’t agree with – and the way she has done it is unlawful.
We are taking legal action to make sure those in power are not allowed to put themselves above the law. Our message to the Home Secretary is clear – see you in court.
Katy Watts is the lawyer leading Liberty’s case. She said:
The Home Secretary has side-lined Parliament to sneak in new legislation via the back door, despite not having the power to do so. This overrules Parliament who voted these same proposals down just a few months ago – and is a flagrant breach of the separation of powers that exist in our constitution.
The wording of the Government’s new law is so vague that any anything deemed by police to cause ‘more than a minor’ disturbance could have restrictions imposed upon it. This same rule was democratically rejected earlier this year, yet the Home Secretary has gone ahead and introduced it through other means regardless.
It’s really important the Government respects the law and that the Home Secretary’s decision is reversed immediately.
Dwindling democracy
Braverman’s move was hardly surprising – given that the current crop of Tories are some of the most authoritarian in recent memory. As the Canary‘s Joe Glenton previously wrote:
Under the Tories, a range of authoritarian bills have passed into law. And they have brought with them the sense of democratic space narrowing before our eyes.
With the Spy Cops Bill, the Policing Bill, the Overseas Operations Bill, and the Snooper’s Charter, it is evident that many of the basic rights which have been won over many years are being stripped back
As such, if Liberty can navigate the courts to stop at least one aspect of the Tories’ current assault on all our rights, then that would be a win for everyone.
Featured image via the Telegraph – YouTube and Liberty – screengrab
