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.
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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:
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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