The UK unlawfully increased police powers to impose conditions on peaceful protests, human rights organization Liberty claimed  in court on Wednesday. The law in question, the Public Order Act, had been pushed through Parliament by former Home Secretary Suella Braverman, despite being rejected by Parliament only months before, in January 2023.

The court case centers around the Public Order Act, which received royal assent in May 2023. Summarized at the start of the legislation, the act seeks to address: new public order offenses; stop and search powers; the exercise of police functions relating to public order; proceedings by the Secretary of State relating to protest-related activities; serious disruption prevention orders; and for connected purposes.

The key issue in the court case is “serious disruption prevention orders” and police powers. The act allows the police to impose conditions on a protest if it could cause “serious disruption to the life of the community,” which is defined in Part 3 S. 34(1) as a case in which individuals or an organization are physically stopped (“or hindered to more than a minor degree”) from carrying out activities, are prevented from making or receiving “a time-sensitive product” (defined as any product whose value may be significantly reduced by a delay in the receipt of the product), or prevented from accessing (or disrupted) any essential goods or services. In essence, any protest that affects a person or an organization’s activity by “more than a minor degree” could be subjected to the new, more stringent police action.

Liberty is disputing the breadth of this provision because Braverman used a statutory instrument to retroactively change the act to lower the threshold of what constituted a “serious disruption.” Liberty claims, “Braverman and the Government were not given the powers by Parliament to take this into action – making it a serious overreach which violates the constitutional principle of the separation of Parliament.” The cross-party House of Lords Secondary Legislation Scrutiny Committee found in a recent report that this is the first instance of a government seeking to change the law in ways already rejected by Parliament when introduced in primary legislation through a statutory instrument.

Katy Watts, the Liberty lawyer leading the case, said:

Our democracy exists to make sure a government can’t just do whatever it wants – but the Government’s actions make a mockery of this and of our centuries-old parliamentary system… The UK has the longest unbroken democracy in the world, but it rests on the separation of powers… The Government’s actions are a flagrant breach of that… and cannot be allowed to go unchecked. The fact that this is the first time a government has ignored a decision of Parliament to make laws in this way shows just how desperate those in power are to put themselves above the law.

The government explicitly referred to activist groups like the Extinction Rebellion, Just Stop Oil and Insulate Britain as justification for the act’s introduction. Liberty also referred the court to the high-profile acquittal of activist Greta Thunberg and the government’s condemnation of pro-Palestinian marches, both in scrutinizing them and in conflating them with current concerns about the safety of MPs. The latter dominated recent news cycles after the chaos in the House of Commons that followed a symbolic vote on a Gaza ceasefire last week.

Liberty originally sent a pre-action letter to the Home Secretary, broadly claiming that the Secretary of State is seeking to adjust the threshold on protest powers “by the back door,” that this is contrary to the intention of Parliament, that the regulations are an unlawful unjustified interference with the principle of Parliamentary Sovereignty, and that the new consultation was not fairly consulted on. A court then allowed Liberty to bring a legal challenge. Liberty has brought the suit against the current Home Secretary James Cleverly, who can change the definition, rather than Braverman, who has since left office. The trial (Liberty v SSHD)  is expected to run for two days at the Royal Courts of Justice in London.