14th June 2023
Here is a story about law-making told in different ways.
The law in question is a statutory instrument made under the Public Order Act 1986 – the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 – which comes into force tomorrow.
The public are sick of Just Stop Oil’s planned programme of deliberate disruptions to daily lives. I’ve just signed an SI to change the law, giving Police power to stop protests causing more than a “minor hindrance” to a journey. This comes into effect at midnight tonight. pic.twitter.com/Zt9V4T0nko
— Chris Philp MP (@CPhilpOfficial) June 14, 2023
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By way of background
A statutory instrument is what is called “secondary legislation” and it has the same effect as primary legislation, as long as it is within the scope of the primary legislation under which it is made.
Statutory instruments are, in effect, executive-made legislation. They still have to have parliamentary approval, but they are not open to amendment and rarely have debate or a vote.
Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.
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The government’s version
The first way of telling the story is from the government’s perspective.
The statutory instrument was put to a vote in the House of Commons on Monday with the Home Secretary herself leading the debate.
At the end of the debate there was a contested vote, which the government won:
The (elected) House of Commons having shown its approval, the House of Lords did not pass a “fatal” motion against the statutory instrument.
Instead the House of Lords passed a motion (merely) regretting the Statutory Instrument:
The vote (against the government) was as follows:
The House of Lords also had a specific vote on a fatal motion, which was defeated:
And when the official opposition was criticised by for not supporting the fatal motion, a frontbencher was unapologetic:
An unelected House of Lords can’t block an elected House of Commons.
If you don’t want Tory laws to go through Parliament elect a Labour government.
— Wes Streeting MP (@wesstreeting) June 13, 2023
And this is the first way of telling this story: there was a Commons vote; the Lords showed disdain but did not exercise any veto inn view of the Commons vote; and so the statutory instrument became law as the result of a democratic legislative process.
Told this way, the story is about how laws can and are made by such a democratic legislative process
Nothing to see here.
But.
But but but.
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The constitutionalist version
There is another way of telling this story.
This account starts with the Public Order Act 2023 when it was a bill before parliament.
At a very late stage of the passage of that bill the government sought to amend it so as to include provisions that were substantially similar to what ended up in the statutory instrument passed this week.
The government failed to get those amendments through the House of Lords. and so they were dropped from the bill before it became an Act.
As a House of Lords committee noted:
The Home Office could not answer these basic questions:
For this committee to say that it believes “this raises possible constitutional issues that the House may wish to consider” is serious stuff.
What had happened is that the Home Office, having failed to bounce parliament into accepting these amendments into primary legislation by very late amendments, has come up with this alternative approach.
Told this alternative way, the story is not about how laws can and are made by a democratic legislative process.
Instead, the story is about how a democratic legislative process can be frustrated and circumvented by the executive.
Instead of using primary legislation so as to make substantial (and illiberal) changes to the law, the government has used statutory instrument which cannot be amended or considered in detail, and has used its whipped House of Commons majority to face down Lords opposition.
Plenty to see here.
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The story may continue
Yet this is not how the story (told in either way) may end.
The thing about statutory instruments is that, unlike primary legislation, they can be challenged at the High Court.
This means that there can sometimes be a sort of constitutional see-saw: the convenience of using statutory instruments (as opposed to primary legislation) can be checked and balanced by an application for judicial review.
And that is what the group Liberty is doing, and its letter before claim is here.
In essence, the argument is that – notwithstanding the parliamentary approval – the statutory instrument is outside the scope of the relevant provisions of the Public Order Act 1986.
Liberty seems to have a good point, but any challenge to secondary legislation is legally difficult and it is rare that any such challenge ever succeeds.
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The moral of the story?
The moral of the story, however it is told, is perhaps about the general weakness of our constitutional arrangements in respect of limitations placed upon rights and liberties.
A government, using wide enabling legislation, can put legislation into place that it cannot achieve by passing primary legislation.
This cannot be the right way of doing things, even if Labour is correct about these illiberal measures having the support of the House of Commons.
There are some things our constitutional arrangements do well – and here we can wave at Boris Johnson and Elizabeth Truss having both been found repugnant and spat out by our body politic.
But there are things our constitutional arrangements do badly – and the increasing use (and abuse) by the government of secondary legislation to do things they cannot (or will not) get otherwise enacted in primary legislation worrying.
And a government casually and/or cynically using (and abusing) wide enabling powers is not a story that usually ends well.
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I think it’s relevant that the Lords only has the right to delay most primary legislation, while its right to block an SI is, in theory, as absolute as they on the Commons. An absolute veto is a power that the unelected Lords is quite rightly reluctant to use. If it only had the power to delay SIs we might see better scrutiny.
The problem here is not with the government seeking to achieve in secondary legislation what it failed to achieve in primary. It is with an acquiescent legislature which has been all to ready to give the government the powers it needs to do so. Whatever one thinks about the merits of it, both Houses have now voted in favour of these regulations, there cannot be a constitutional argument that they are any less proper than any other secondary legislation passed in such a way.
If there is an argument that these regulations are not within the scope of the powers in the primary legislation, so be it – but that argument is neither strengthened nor weakened by the manner by which the regulations were approved.
What is novel and more concerning is the doctrine advanced by Labour that it would have been somehow improper for the Lords to vote them down at all. Either the Lords are fundamentally illegitimate, in which case Labour might be expected to be campaigning for immediate abolition, or they are legitimate, in which case they should not be inhibited from using the powers they have.
So the upshot is that the government has further demonstrated its authoritarian tendencies, and the opposition has demonstrated that it is unprincipled and irresolute. Not a good day’s work.
An observation of someone who grew up in South Africa. If the law gives police wider powers to arrest citizens, they will use those laws.
Laws that protect civil rights, and limit state authority are created but people who have witnessed or experienced abusive government. What passed in Parliament is the result of complacency created by a country that has no living memory of a government that wields its power against citizens it doesn’t like.
Labour, under the leadership of someone who has the intelligence and qualifications to know differently, did not think this through.
A parliamentary democracy can only be as good as the actual Parliament in question. Here we have a parliament with a lower house cowered into accepting the unacceptable by an illiberal government, and an upper house so debased that it dares not use the powers it has.
Hence, we have very little parliamentary democracy in this country. We have a muddle of old institutions eviscerated of their meaning and sense of direction.
This is a really helpful analysis thankyou.
I feel as though the Labour Lords have looked up long enough to table, in effect a head shake, then looked down quickly patting themselves on the back for doing so and leaving us ordinary folk to try and deal with this, if we can, whilst gradually turning into a Police State.
Only 10 Rebels but to me they are on the side of “good trouble” and what is Right. I still have the fear why on earth would any Government, especially a Labour one, want to skirt around Parliamentary Sovreignty unless it’s to breach our Civil Rights in the face of unrest against them. This is not good. Our Poltitics is in a bad place.
Is there another reality or two at play here.
I might have the wrong end of the stick, or even the wrong stick, but I’ve always thought the Parliament Act whilst an extremely blunt sword – it is a weapon ( or tool if you prefer) for the government of the day to get any primary legislation through the Lord’s.
And, the reason for even considering the use of the Parliament Act* is because over the years the number of cross bench peers has grown substantially and that, when combined with Labour, it is relatively easy to see how legislation could get delayed or voted down by the 2nd unelected chamber ( with all the downside consequences).
*just supposing the Parliament Act was considered too drastic a tool ( proportionate to the perceived importance of the legislation) was the government merely being more temperate by using the secondary instrument route to get the legislation past?
I’ve no dog in this race – rather just keen to better understand the interesting issues raised by the blog author.
I’m not convinced that you can credit the constitution with spitting out the two disgraced former prime ministers: that was internal party machinations.
I assume the use of the phrase ‘enabling legislation’ is not an accident and I applaud it. The parallels with the 1930s just keep coming.
The number of Statutory Instruments passed in the last three years is:
2020 – 1669
2021 – 1494
2022 – 1406
Very little detailed scrutiny takes place regarding this method of legislating. Having regard as to how Brexit primary legislation was pushed through without proper debate, it is little wonder that members of parliament basically let the executive just get on with producing hordes of legislation that few know about and even fewer enforce.
Ignorance of the law is no excuse but producing law in such quantity demonstrates, in itself, the nanny state alive and well.
Careful Will Robinson. Danger for the unwary….
Not a lot of people know this but for many years – actually since we joined the (then) EEC now EU, Statutory Instruments have been used to enshrine EU law into UK law under the European Community Act *.
Then we get this:
https://www.legislation.gov.uk/eu-legislation-and-uk-law
“..Other types of EU legislation, such as Directives, are indirectly applicable, which means they require a Member State to make domestic implementing legislation before becoming law in that State. In the UK this was often achieved by making Statutory Instruments rather than passing primary legislation. For example, The Re-use of Public Sector Information Regulations 2015 (No. 1415) implemented the EU Directive on the re-use of public sector information (Directive (EC) No. 2003/98). This implementing legislation has always been published on legislation.gov.uk.
Thing is there are > than 19,000 pieces of EU legislation on the books – that’s a lot of law/lex – in the majority of cases , for many years, MP’s sat on their ars** and effectively used SI’s to get EU legislation into UK law which we were obliged to do as members of the EU.
It also explains why repealing EU legislation is such a chore & you can bet that SI’s will eventually be used to do just this.
As an old MP said to me years ago “the reason a lot of MPs and civil servants like the EU, is that it does the job for you” – another outcome and by-product of Brexit is that MP’s will be working significantly harder for their crust in future.
SI’s might seem to be problematic and used badly – in the case when we were in the EU they where an absolute necessity.
*(The European Communities Act (1972) is the domestic legislation that took the UK into what was then the European Economic Community, a precursor to the EU, following the signing of a treaty on 22 January 1972).
Thank you for this excellent summary that explains the background.
The parliamentary and constitutional issues are interesting but with Just Stop Oil we have a matter of Realpolitik. Essentially many of our well known historic protest movements have been over some matter the government of the day could do something – but would not until it had its arm well twisted – then it did the ‘right’ thing.
But stopping the use of oil is not within the UK’s power nor the EU’s power nor the USA’s power nor China’s power. From a practical viewpoint if all governments acted as one and we all accepted massive changes to our lives then oil could be stopped – but you won’t like the effect and will soon start protesting about the unpleasantness. So I suspect the Commons and the Lords let this legislation through due to Realpolitik. Just Stop Oil is a thundering nuisance that the UK can do nothing about – except to prevent slow marches and bridge climbing. Quixotic.
A pity because now injustices that the UK government can and should do something about may get less protest attention than they should. We shall see how Liberty et al get on.
> Statutory instruments…still have to have parliamentary approval….
> Often the parliamentary approval of statutory instruments goes through on the nod, but sometimes they need to have a positive vote in favour.
Even that overstates parliament’s powers.
Though the Public Order Act regulations were at least subject to “affirmative procedure”, requiring the Lords and Commons to approve them, most non-local statutory instruments are subject to “negative procedure”, which means they only cease to have effect in the (exceedingly rare) event that either House votes to annul them. Crucially, for negative instruments, there is no requirement for approval, not even on the nod.
And as the Commons agenda is set by the Government rather than by MPs as a whole, there is no guarantee of even an opportunity for a Commons vote, even if the Opposition or most MPs demand one. https://www.hansardsociety.org.uk/blog/taking-back-control-initial-thoughts-on-the-great-repeal-bill-white-paper#:~:text=the%20Leader%20of%20the%20Opposition%20and%20his%20front%20bench%20colleagues%20tabled%2012%20prayer%20motions%20for%20a%20debate%2C%20just%205%20were%20granted
Moreover, local and commencement-date statutory instruments are not subject to any veto, as there is no provision for them to be put before Parliament at all.
“An SI laid under the affirmative procedure must be actively approved by both Houses of Parliament.”
https://www.parliament.uk/site-information/glossary/affirmative-procedure/
What is the point of providing that statutory instruments must be passed under the affirmative procedure – that is, “actively approved by both Houses of Parliament” – if the House of Lords does occasionally block such instruments, particularly in a case like this when the instrument is used to overturn a decision made by Parliament recently in related primary legislation?
Whatever Wes Streeting says, the “unelected” House of Lords does in fact have the power – subject to the terms of the Parliament Acts, and the Salisbury Convention – to block the “elected” House of Commons. More to the point, each House of Parliament has the power to prevent executive overreach in a case like this.
Labour’s abstention in the Lords smacks of cowardice. They would rather this illiberal and misconceived instrument is passed into law (and be criticised by their political friends for inaction) than be criticised by their political opponents for blocking it. For shame!