Court gives clarity on consultations : R (The National Council for Civil Liberties) and others v The Secretary of State for the Home Department

Chloe Woodward and Joe Walker discuss a recent judgment on when engagement with third parties constitute a formal consultation and must therefore adhere to case law on being 'run fairly'.

On 2 May 2025, the Court of Appeal (CoA) handed down its judgment on R (The National Council for Civil Liberties) and others v The Secretary of State for the Home Department (“Liberty”).[1]

The decision clarifies the circumstances in which a public body’s engagement with third parties to inform its decision-making might constitute a “formal consultation”, in which case it must be run fairly (in accordance with the principles set out in the case R v Brent London Borough Council[2]).

Case background

In December 2022, following protests by the environmental pressure group Just Stop Oil (“JSO”), the Government sought to strengthen police powers to intervene in public protests. One of JSO’s most disruptive protests had taken place a month earlier in November, when four activists brought traffic on the M25 to a standstill for four days.[3]

The Government did so by amending powers granted to the police in the Public Order Act 1986 (“the 1986 Act”). Sections 12 and 14 of the 1986 Act empower the police to impose conditions on public processions and assemblies which may result in “serious disruption to the life of the community.”

The Secretary of State made Regulations to define “serious disruption to the life of community” as any disruption which was “more than minor”.[4]

This sparked concern amongst civil liberties groups that police powers for regulating public protests had been significantly broadened,on the basis that “more than minor” was a much lower threshold than “serious”.

In June 2023, The National Council for Civil Liberties (“Liberty”) sought judicial review of the Secretary of State’s decision to make the Regulations. Liberty succeeded in the High Court on the following two grounds:

• The definition in the Regulations of “serious disruption” as “more than minor” exceeded the Secretary of State’s power to define that term, because “serious” was not capable of meaning “more than minor”; and
• That the Government had run a voluntary consultation on the amendments, which had been one-sided and therefore unfair.

The Secretary of State appealed against this decision.

Finding (1): The “ultra vires” ground

The CoA agreed with the High Court that “serious” was not capable of meaning “more than minor”, and therefore the Secretary of State had exceeded their powers in making the Regulations. Ultimately this boiled down to a linguistic analysis, with the CoA agreeing that the ordinary and natural meaning of “more than minor” is materially lower down the scale than “serious”.

Finding (2): The consultation ground

Of greater significance for public authorities was the CoA’s finding on the second ground, about whether the Government held an unfair (and consequently unlawful) consultation on the text that ultimately became the Regulations.

When forming the original proposals, the Government had almost exclusively sought the opinion of senior police personnel: through a “roundtable” discussion (to which the Commissioner of the Metropolitan Police and senior representatives of the NPCC, the College of Policing, and other police forces were invited); and through inviting written comments on the draft proposals from policing bodies.[5]

Liberty’s claim

Liberty claimed that these actions amounted to a consultation.

It did not however rely on the three existing common law grounds giving rise to a duty to consult at common law.[6]

Instead, Liberty argued that the decision of the Court in R (Eveleigh) v Secretary of State for Work and Pensions [2023] established a new ground that a formal consultation at common law would be initiated where (a) there was a sufficiently crystallised proposal; (b) that it was likely that the proposal would impact a particular group (usually adversely); and (c) that the proposal was at a formative stage.[7]

In Liberty’s view, these conditions were met.

Liberty then argued that the consultation the Government had held was unfair because it was one-sided because it only took into account views from policing bodies.

Appeal

The Government argued (in the High Court and on appeal) that a voluntary consultation exercise had not been undertaken by the Secretary of State.

The CoA upheld the Government’s appeal on this ground, overturning the lower Court’s judgment.

It confirmed that consultative engagement did not morph into a formal consultation by virtue of there being a crystallised proposal, impacting a group, and which was at a formative stage.

The CoA explicitly constrained the scenarios in which a consultation could arise to the limited scenarios identified in the case of Plantagenet Alliance.[8]

The primary reason for the CoA’s decision was to avoid establishing a precedent whereby public authorities would be required to run consultations in a much wider range of scenarios, such that doing so would cause “[t]he process of government… [to] grind to a halt.”[9]

It was essential for public authorities to be able to “take advice, obtain information, secure undertakings, and garnish support from various interest groups without being required to treat their polar opposites in precisely the same way.”[10]

The CoA also emphasised the following points:

• Police personnel had been consulted on operational matters and the workability of the proposed amendments to the 1986 Act, rather than their desirability. Attention was drawn to the urgency with which the Government was acting to prevent further disruptive protests by JSO.
• The alleged consultation was “essentially intra-governmental”, because the police (i.e. the consultees), whilst “not a department of government” are “arms of the state”, for which the Home Secretary has constitutional responsibility.” This factor made the alleged consultation of an entirely different nature to a “formal consultation” held under statute or common law.

• The Government’s decision to listen to some interest groups and not others is a political rather than judicial matter.[11]

Our thoughts:

The CoA’s decision in Liberty provides comfort to public authorities that the circumstances in which a duty to consult may arise remain in their narrower form.

Had the Divisional Court’s ruling been upheld, public authorities would have been exposed to potentially burdensome duties to run consultations in a much wider range of scenarios.

It further reinforces the courts’ reluctance to interfere in matters of a fundamentally political character.

In relation to the right to protest, the CoA’s conclusion that the definition of “serious disruption” as “more than minor” was ultra vires helps to clarify the meaning and scope of the relevant police powers under public order legislation.

Sources

1. Just Stop Oil protesters jailed after M25 blocked – BBC News
2. R (Association of Personal Injury Lawyers) v Secretary of State for Justice [2013] EWHC 1358 (Admin).
3. R (Coughlan) v North & East Devon Health Authority [1999] EWCA Civ 1871 [2001] QB 213.
4. R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin).
5. R (The National Council for Civil Liberties) an others v The Secretary of State for the Home Department 2025] EWCA Civ 571.

• R (Eveleigh) v Secretary of State for Work and Pensions [2023] EWCA Civ 810, [2023] 1 WLR 3599.