Public Order Act 1986 (Serious Disruption to the Life of the
Community) Regulations 2023 Moved by Lord Sharpe of Epsom That the
draft Regulations laid before the House on 27 April be approved.
Relevant document: 38th Report the Secondary Legislation Scrutiny
Committee (special attention drawn to the instrument). The
Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of
Epsom) (Con) My Lords, I thank all noble Lords for attending this
debate....Request free trial
Public Order Act 1986
(Serious Disruption to the Life of the Community) Regulations
2023
Moved by
That the draft Regulations laid before the House on 27 April be
approved.
Relevant document: 38th Report the Secondary Legislation Scrutiny
Committee (special attention drawn to the instrument).
The Parliamentary Under-Secretary of State, Home Office () (Con)
My Lords, I thank all noble Lords for attending this debate.
These regulations amend Sections 12 and 14 of the Public Order
Act 1986, which grant the police the power to place necessary
conditions on public processions and assemblies to prevent
specific harms from occurring. One of these harms is serious
disruption to the life of the community. These regulations do not
create new powers but define this harm.
Once in force, these regulations will ensure that public order
legislation is clear, consistent and current. They will carry
over a definition of “serious disruption” which has already been
approved by Parliament and provide greater clarity on the
circumstances in which the police can exercise their powers to
manage public processions and assemblies. Most importantly, they
have given the House of Commons the opportunity to consider these
measures.
Without these changes there is potential for confusion over what
is the lawful extent of protest activity. The police and public
will have to grapple with one threshold for criminal offences in
the new Public Order Act and another for the use of discretionary
police powers in the 1986 Act. With these changes, it will be
easier for all to understand when disruption from a protest is no
longer legitimate.
The provisions in these regulations are broadly similar to those
brought to the Public Order Act 2023 as a government amendment
during its passage through Parliament. The only difference is
that these regulations do not allow the police to place blanket
conditions on multiple protests. I will detail exactly what the
regulations do shortly.
The government amendment was narrowly defeated by 14 votes in
this House, and was not considered by the elected Chamber. This
vote occurred before the vote for adopting the current definition
of “serious disruption” in the 2023 Act, which was approved by
both Chambers. As both Houses have agreed on a definition, we are
sensibly extending it across the statute book and bringing
further clarity to public order law. That is something which has
been sought by senior police officers and by many in this Chamber
today.
The Commissioner of the Metropolitan Police has said:
“The lack of clarity in the legislation and the increasing
complexity of the case law”—
the increasing complexity that the case law is making between the
right to protest and the rights of others to go about their daily
lives free from serious disruption—
“is making this more difficult and more contested”.
The delegated power being used existed prior to the introduction
of the Public Order Act 2023. The power was available for the
Government to use during the passage of the Public Order Act
2023. These delegated powers were scrutinised by the Delegated
Powers and Regulatory Reform Committee, which recommended that a
definition of “serious disruption to the life of the community”
be included on the face of the Police, Crime, Sentencing and
Courts Act 2022, coupled with a power to amend the definition by
affirmative procedure regulations. This recommendation was
accepted and implemented in full.
It is entirely right that the Executive use powers conferred by
both Houses of Parliament to allow the elected Chamber to
consider the proposed change in law. The other place has now had
the opportunity to consider these measures and has approved them
following debate on the Floor of the House yesterday.
The Motion of the noble Baroness, Lady Jones, is highly unusual,
and seeks to strike down legislation passed by the elected House
and undermine sensible changes which bring clarity and
consistency to the law. During the passage of the Public Order
Act, the Government listened and responded to the strength of
feeling in Parliament on many issues. Changes were made on many
of those issues, including serious disruption prevention orders,
protections for journalists reporting on protests, and
others.
The need for clear powers to improve the management of highly
disruptive protests has been well rehearsed, but I will reiterate
them quickly. The current Just Stop Oil slow-walk campaign has
resulted in the use of over 13,770 police officer shifts,
diverting police attention away from local communities.
Financially, this has cost the taxpayer £4.5 million in just six
weeks, and this is in addition to the £14.5 million it cost last
year. These near-daily protests—as of yesterday, I think it was
156 separate protests in six weeks—have pushed the public to
their limit. We have seen people taking matters into their own
hands. Therefore, as a Government, we must do what we can to
empower the police to respond swiftly and effectively.
Given the scale and impact of the disruption caused by slow walks
and sit-ins on roads, it is in the public interest to clarify
these police powers as a matter of urgency. The Government have
always been clear that the delegated powers were needed to be
able to respond quickly to evolving protest tactics. The
intensive use of slow walks across London has proven that. Once
in force, the regulations will provide the police with the legal
clarity they need to protect the public from this tactic.
As I have already mentioned, these regulations do not grant new
powers to the police, but clarify the extent of existing ones.
Therefore, it was deemed disproportionate to carry out a full
public consultation. Targeted engagement with the National Police
Chiefs’ Council, the Metropolitan Police Service and other police
forces was the appropriate approach. All have welcomed clarity in
the law. The Metropolitan Police Service specifically welcomed
clarity on how the police should consider serious disruption in
relation to imposing conditions.
The regulations achieve this by making the following
clarifications. First, these regulations will clarify that the
police may consider the cumulative impact of concurrent and
repeated protests in the same area when assessing whether
“serious disruption to the life of the community” may occur.
Although a single protest may not in itself cause serious
disruption, it is undeniable that a community subjected to
repeated or concurrent protests will suffer due to the
compounding effect of multiple protests.
Secondly, they allow the police to consider the absolute
disruption caused by a protest. That is to say, police should be
able to consider the disruption a protest may cause, regardless
of what disruption may be common in an area for other unrelated
reasons. Without these regulations, “serious disruption to the
life of the community” is often considered with reference to what
is regarded as normal for a given area, rather than the nature of
the disruption caused at that moment in time.
Thirdly, the regulations define the term “community” to mean,
“any group of persons … affected by the procession”,
or assembly, and not just those who live or work in the vicinity
of that procession or assembly. This change clarifies that a
broader definition of community is to be used when interpreting
the meaning of “serious disruption to the life of the community”.
This definition better reflects the modern way of life in major
cities.
Finally, as I have previously mentioned, the instrument aligns
the definition of “serious disruption” with that in the Public
Order Act 2023, simplifying protest law. During the passage of
the Public Order Act, the appropriate definition of “serious
disruption” was debated at length. I would again like to thank
all noble Lords for what was an exceptional debate with
high-calibre contributions from all sides.
I remain of the view that the definition rooted in protest case
law proposed by the noble and learned Lord, , strikes the right balance
between legitimate and illegitimate protest. This definition has
been scrutinised and approved by both Houses of Parliament. It
should now be carried across to the Public Order Act 1986 to
ensure consistency across the statute book.
As well as aligning public order legislation, the regulations
also bring further clarity by building on the non-exhaustive list
of examples of serious disruption to the life of the community to
include
“the prevention of, or a hindrance that is more than minor to,
the carrying out of day-to-day activities”,
such as making a journey. This provides legal clarity that it is
entirely appropriate for the police to place necessary conditions
on protests that are obstructing the public from going about
their daily business.
Finally, I remind the House that the Government are legally
required to publish a report on the operation of amendments made
to Sections 12 and 14 of the Public Order Act 1986 by the Police,
Crime, Sentencing and Courts Act 2022. The report must be
published and laid before Parliament by 28 June 2024. I can
confirm that this paper will also report on the operation of the
changes made by this statutory instrument.
In summary, the regulations are necessary changes to the law to
ensure that public order legislation is clear, consistent and
current. They will improve the protection of the public—who this
Government support —against the minority of protesters who
repeatedly trample on their rights. Current and former police
officers, as well as Peers and Members of the other place on both
sides of the debate, have called for public order legislation to
be both easy for officers to interpret and specific. This
statutory instrument achieves these objectives. I beg to
move.
Amendment to the Motion
Moved by
Leave out all the words after “that” and insert “while approving
the draft Regulations laid before the House on 27 April, this
House regrets that the Regulations propose as secondary
legislation, which is subject to reduced scrutiny, measures that
were recently rejected in primary legislation, and that His
Majesty’s Government has not addressed the concerns raised in the
House when the measures were in primary legislation, or
undertaken a full public consultation on these controversial
measures; and therefore calls on His Majesty’s Government to
withdraw the Regulations”.
(Lab)
My Lords, I will make a brief statement before I start my remarks
on the regulations. As a Nottinghamshire resident and a former
Nottinghamshire Member of Parliament with an obvious close
attachment to the city, I am shocked, appalled and saddened at
the awful events in Nottingham earlier today—as we all will be. I
am sure the whole House will want to join with me in thanking the
emergency services and in sending our condolences to the families
and friends of the victims and the whole community.
Noble Lords
Hear, hear!
(Lab)
My Lords, in moving the regret amendment in my name on the Order
Paper, I should say that there were contentious and furious
debates over the Public Order Act in the Chamber and beyond,
although you would not have recognised that from the Minister’s
comments.
Let me spell out from the beginning that I do not defend the
actions of Just Stop Oil for one minute and neither does my
party; I think that it has gone beyond the bounds of
reasonableness. However, the police have the powers to deal with
these protests, if they had the confidence to use them. Indeed, I
agree with the chief constable of Greater Manchester, who said in
the media a couple of weeks ago,
“we have the powers to act and we should do so … quickly”.
Our message to the police should be to use the powers they have
and that they have our support.
The regulations before us make very real changes to the public
order legislation we have. They reduce the threshold for the
policing of protests to prevent serious disruption to the life of
the community from “significant” and “prolonged” to “more than
minor”. They also refer to the cumulative impact of repeated
protests.
I remind the Minister and noble Lords that, in the passage of the
then Public Order Bill, I asked whether the Government intended
to use secondary legislation to overcome the fact that they had
lost their vote on measures that were introduced without the
Minister knowing a thing about it—namely, the amendment
introduced into the Lords, which the Minister no doubt found out
about like the rest of us, when we heard it on the radio in the
morning. I specifically asked him about this on 14 March, and he
said:
“They do not permit this or any future Government to make changes
to the meaning of ‘serious disruption’ in this Bill”.—[Official
Report, 14/3/23; col. 1209.]
My contention is that that statement implied that the Government
would not, in any circumstance, bring forward secondary
legislation to change primary legislation. These changes to the
law presented to Parliament are via secondary legislation, which
I remind noble Lords is unamendable, so there is no ability for
meaningful debate.
All protests could be duly affected across the country, with no
opportunity for anyone in this Chamber or indeed the other place
to say that these changes go too far; no ability to debate
whether these changes would impact on protests, or to say that
although we do not like Just Stop Oil, we might support protests
which deal with extensive housing developments, with
inappropriate third runways at Heathrow Airport by lying down in
front of bulldozers, or against new nuclear power stations and so
on. All these protests are potentially affected by the changes to
the legislation that the Government have brought forward. There
is no opportunity for us to table amendments to change that, and
the Government Minister just dismisses that as somehow
irrelevant.
7.45pm
This is all done without proper consultation. An appalling
Explanatory Memorandum was changed only today to try to take
account of the criticisms in the 38th report of the Secondary
Legislation Scrutiny Committee, which absolutely eviscerates the
Government and what they have done. I received an email at 2.27
pm today—I do not know whether anyone else did—saying that the
Government were changing their Explanatory Memorandum: “Later
today, the House is debating the public order draft, et cetera …
The Home Office has just laid a revised memorandum to these
regulations”. Honestly, you could not make it up—2.27 pm.
I do not know whether noble Lords will be aware of the extensive
publication of this change; why on earth does the Minister think
that is acceptable, in particular the way the Government justify
themselves in answer to the criticisms of the Secondary
Legislation Scrutiny Committee? I will tell noble Lords—
(Con)
I have not seen the additional Explanatory Memorandum. Would the
noble Lord tell us what additional material is in it? If it is
substantial, surely it should be provided to all Members of this
House before the debate proceeds.
(Lab)
I will read a couple of sentences from it. Paragraph 6.8 provides
a reason why the measures are being brought back in this
instrument; the justification of promoting “consistency” across
the statute book is similar to that provided to the SLSC in
advance of the report, and is discussed at paragraphs 16 and 18
of the report. I could not quote what paragraphs 16 and 18
actually are. There is a new paragraph 10.1; it provides a reason
why:
“A full consultation was not necessary”.
I have no idea what paragraph 10.1 says, so I apologise to the
noble Viscount. And so it goes on. The Government seek to justify
themselves—
(Lab)
I am sorry to interrupt my noble friend in full flow, but I am
shocked by what he is saying. Can he just confirm that this
change to the Explanatory Memorandum was therefore tabled after
the House of Commons had its debate?
(Lab)
My noble friend predicts what I was going to say next, in a calm,
reasonable, rational way. I was going to ask whether the Minister
could confirm whether the other place considered these changes to
the Explanatory Memorandum before it had the opportunity to
consider the regulations. As a football fan, I say that if this
was a football crowd, it would be chanting to the Government,
“They don’t know what they’re doing”. It would be quite
right.
At heart, what do we believe? I will tell noble Lords what I
think, and what I think the SLSC and many noble Lords said. What
has taken place is an absolute, fundamental constitutional
outrage. This House defeated these, or similar, proposals,
brought forward in a panic, as I said, by the noble Lord, Lord
Sharpe, without knowing really that he was going to have to do
it, earlier this year. Primary legislation was defeated. So what
do the Government do? They do not bring forward new primary
legislation. They try to sneak through secondary legislation in
an underhand way without proper public consultation.
As the Secondary Legislation Scrutiny Committee said:
“We are not aware of any examples of this approach being taken in
the past”.
Is this what it has come to? Our Government have, in a shocking
betrayal of our unwritten constitution, undermined the
conventions on which our way of doing things is based, and on
which our Parliament is based. How many times have I stood here
and spoken of the need to protect conventions, to recognise the
right way of doing things? These conventions protect our
democracy, our rights and our freedoms. They are not just
something for the Government of the day to dismiss because they
are inconvenient. That undermines the workings of our
parliamentary democracy. As such, it is shocking.
Of course, the elected Government should have their way, but this
was not passed by the other House before being defeated. The
Minister says, in a piece of political theatre, “Oh, don’t worry,
we passed it yesterday in the House of Commons”. Embarrassed and
in a panic in the face of today’s criticism, this was so the
Government could say: “Don’t worry about that. We’ll be able to
tell Coaker and everybody else who has mentioned it that we
passed it yesterday through secondary legislation. That
completely torpedoes their argument that the House of Commons
hasn’t discussed it”. Such was the rush that they could not even
ensure that an amended Explanatory Memorandum was put before the
other place before it decided on the legislation.
Like many noble Lords, I have been in this Parliament for a
number of years, and I have never seen anything like this.
Nothing changes. The fundamental principle is that this
Government are using secondary legislation to overcome primary
legislation; hence my regret amendment deploring it and calling
on the Government to think again. We will abstain, as I say, on
the fatal amendment. We will not block this legislation.
Let me be clear to those who keep asking me whether His Majesty’s
Opposition’s position is to block the SI: we will not do that. I
understand why some people would wish that to be otherwise but,
as His Majesty’s Opposition, we will respect convention. We will
respect tradition and the right way of doing politics in our
country. I do not believe that it necessarily shows any respect
for the way that democracy works by voting down the opinion of
the elected Government of the day.
The way to change that is, in my view, to get rid of this
Government at the next election and put another Government in
their place. That is the way forward. We have opposed these
measures and will continue to argue that they are unnecessary.
But we should not, in my view, be debating this among ourselves.
The true adversary in all of this is a bankrupt Government
turning in on themselves. We will respect the right way of doing
things even if the Government do not. If we are to be the next
Government, we will expect those who may oppose us then to act in
the proper way, respecting the will of the elected House. That is
what I am saying to this Government: that they are not respecting
the traditions of our country.
This is a sign of His Majesty’s Opposition doing all they can to
prepare for government and to look like a Government in waiting.
This shoddy piece of constitution-disrespecting legislation, put
forward with no consultation, shows just how far this Government
have fallen. It is a moral and constitutional outrage, of which
the Government should be ashamed. I beg to move.
of Craighead (CB)
My Lords, I feel some sense of responsibility for the situation
in which your Lordships find yourselves this evening because I
devised the formula quoted in the regulations before us.
I drafted that particular formula with very specific reference to
the locking-on and tunnelling offences described in the Public
Order Act, which we were considering as a Bill at that time. I
confess that I was not looking forward at that time to any other
use of that formula. I understand why the Government have found
it attractive and the point they are making that it is better to
have a uniform test across the board. However, as the noble Lord,
, has said, this is a debate
about the right way of doing things.
I have been making strenuous efforts on the REUL Bill to make it
clear that parliamentary accountability requires debate in the
Chamber on things that we can discuss and amend if necessary, and
not be driven by statutory instruments. While I stand by the
formula which I devised—I believe it is the right formula,
pitched at exactly the right point for the police to decide when
they should intervene—I deeply regret that the Government have
felt it necessary to approach a situation in this way. I endorse
exactly what the noble Lord, , has been saying and therefore
wish to make it clear that while I stand by my formula, I greatly
regret the procedure that is being adopted.
(GP)
I actually told the noble and learned Lord, of Craighead, that he should not
have helped the Government. I am prepared to forgive him, from a
sense of generosity, because I know he was trying to help, but it
did not actually help at all. The opening speech by the Minister
was quite interesting because it lasted nearly nine minutes and
focused almost entirely on what the police and the protesters
were going to do. It avoided the talk of the constitutional
novelty that the Government have introduced.
For me, this is a make-or-break moment for democracy. It is a
crossroads that we really have to face up to because, in spite of
what the noble Lord, , said about respecting
conventions, the fact is that the Government have not respected
our conventions. There are two issues at stake here. The first is
suppression of freedom, with a measure that your Lordships’ House
rejected as unreasonable only very recently. In some ways more
seriously, and secondly, this government move sets a precedent
that the Government can use secondary legislation to overrule
Parliament’s will as expressed in votes on primary legislation.
This means that any future Minister, at any time, could decide to
change any law in any way. This to me is deeply disturbing and we
will hear from other people, I hope, who find it disturbing as
well.
The shadow Attorney-General has said that we have to stick to the
conventions and allow this statutory instrument to pass, but that
argument seems to be based on a fundamental misunderstanding of
the conventions. By convention, your Lordships’ House does not
block primary legislation, but this is not primary legislation.
Your Lordships’ House can, does and has blocked statutory
instruments. I recognise that there is no convention that the
Government cannot use a statutory instrument to overturn
parliamentary votes on primary legislation, but that convention
does not exist because no Government have ever tried to do this
before.
What we face here is a novel issue—a turning point for our
parliamentary democracy—and the decision in your Lordships’ House
on the following question will establish a new constitutional
understanding. The key question is: should the Government be
allowed to overturn parliamentary votes on primary legislation by
using secondary legislation? That is the question we have to
think about here today. We have talked before in your Lordships’
House about our discontent about overreach by secondary
legislation. I ask your Lordships: is this not the day to act on
this? If we refuse to act today, when are we going to act?
The Labour Party has tabled an amendment to regret, and regret is
what I believe we will all experience in the future if we fail to
support this fatal amendment today. The whole country will have
cause to regret the further erosion of the right to protest,
which is part of our basic British way of life, and the
enfeebling of this House, which many in this House might regret
as well. We will regret it when Ministers start regularly to use
their power under secondary legislation to overturn existing laws
that Parliament has debated and voted for. We will regret it when
we read headlines about the police arresting a group of parents
and their children who are protesting about pollution outside
their school.
What about the community up in Stone in Staffordshire who, just
last week, protested about having HS2’s HGVs rushing past their
houses 42 times a day? They protested quite hard; I think they
would have fallen foul of this piece of law. Or what about
arresting people holding a vigil for a victim of police violence,
which has of course happened? We will definitely regret it when
we hear about a big march against a government policy, as when a
million of us protested about the Iraq war, and the police will
then have to say, “Sorry, that protest is banned because it may
cause more than minor disruption”. That is a very low bar.
8.00pm
This is an authoritarian law that hands over to the police and
the Home Office the power to decide what is a good or a bad
protest. It erodes the rule of law because any protest will be
permitted only at the discretion of the police, rather than being
a fundamental right that can be interfered with only in limited
and proportionate circumstances. It is being enacted in an
authoritarian manner by ministerial decree. If we let the
Government overturn votes by ministerial decree, what is the
point of this House and all our work? If the justification for
allowing the Government to act in this way is that your
Lordships’ House is not elected, then who is left to defend
Parliament and the UK’s uncodified constitution against
encroachment by an out-of-control Government?
This is not a one-off. It is part of a trend of legislation that
undermines parliamentary democracy. In the past four years, we
have seen a whole series of skeleton Bills passed through
Parliament that hand powers and discretion over to Ministers to
make decisions, with minimal parliamentary scrutiny. These Bills
that hand over the power to Ministers to make and amend rules and
laws have become the norm. It means that in recent years we have
seen a major shift in power away from Parliament, giving it
instead to Whitehall. If the Government are allowed to do this
today, the precedent will have been set. They will do it again
next month and then the next Government will do it as well, and
parliamentary democracy will seep away until this House is less
than a talking shop.
In a few days, more than 55,000 people have signed a petition
that I put out against this legislation. That is a huge number in
a brief time, especially on something that appears to be so
technical and small. But the regret amendment misses the
seriousness of the issues before us and the consequences of
allowing this law to pass. If Labour, Lib Dems, Greens,
sympathetic Cross-Benchers and even principled, sympathetic
Conservatives, support my amendment, we could beat this. We could
defeat it. It is possible. Your Lordships have the power, the
right and constitutional duty to stop this statutory instrument,
which is an assault on democracy. And if not now, when?
(Con)
My Lords, I speak in my capacity as chair of the Secondary
Legislation Scrutiny Committee. The noble Lord, , already referred to the report
that we have published on the regulations that we are debating.
In our report, we raised a number of issues. First and foremost,
we wanted to alert the House to the fact that this instrument
did, as the noble and learned Lord, , has referred to, bring back a
measure that was rejected by the House during the passage of the
Public Order Bill—a point that we felt was particularly important
because, regrettably, it had not been mentioned in the
Explanatory Memorandum laid at the same time as the instrument
itself.
It cannot be denied that primary legislation receives more
thorough scrutiny than secondary legislation. Where a measure is
rejected during the passage of a Bill, only for it to reappear in
secondary legislation, we had no doubt that the House would want
to be made aware of it. We concluded in our report that the House
would probably wish to consider the possible constitutional
issues that arise, and to decide whether it wished to retain its
earlier view on the measures.
We are an advisory committee only. We cannot tell this House what
to do. Our role is to highlight matters about which we believe
the House may want to challenge Ministers and ask for
explanations. This debate demonstrates how true it is that the
House is concerned to debate these regulations thoroughly.
It is a testament to the sterling work of the team that supports
the Secondary Legislation Scrutiny Committee that the committee
has been able to contribute to this important debate, and that my
officials spotted this and questioned the government department
about it as thoroughly as they then did, with further
developments today, to which I will refer in just one moment.
These regulations are not only significant in their own right but
illustrate issues of greater concern to those who sit on our
committee. In May, we published our interim report on the work of
the committee, in which we made observations on the instruments
laid during the previous 12 months. I pay tribute to my
predecessor, my noble friend , who
identified with me a range of matters to which our committee
agreed. One was the inadequacy of consultation. We set out
examples in that report where inadequate consultation had had the
effect of undermining the operation of an instrument.
In our report on the regulations which we are now debating, we
were also critical of the level of consultation, arguing that a
considerably greater degree of consultation would have been more
appropriate given the specific history, the range of interested
parties and the strength of views. Above all, these regulations
demonstrate the committee’s major and recurring concern that all
too often the quality of the explanatory material accompanying
secondary legislation is found wanting.
As I mentioned, our report on these regulations criticises the
Explanatory Memorandum because it failed to mention that the
measures had been defeated in the House on an earlier occasion,
and, as a corollary of that omission, failed to explain the
reasons why the Home Office takes the view that it should make a
second attempt in this matter. This was important information
that should have been included, and provides more than ample
evidence of the finding in our interim report that poor-quality
explanation was the most unwelcome feature of the secondary
legislation that has been laid in the last 12 months.
Just today, in the early hours, the Home Office laid a revised
Explanatory Memorandum for these regulations, responding to some
of the points in the committee’s report. The House can form its
own view on whether the revisions address our criticisms; it is
not for us to publish any further commentary. However,
departments should not have to revise explanatory material at our
prompting. The original version should always provide sufficient
information to scrutinise the instrument fully.
In that interim report, we urged all government departments to
strengthen their quality assurance systems so that explanatory
material, particularly that in support of secondary legislation,
is clear, accessible and comprehensive. We will do our best to
remain vigilant in identifying when departments fail to do this
and are committed to drawing your Lordships’ attention, as on
this occasion, to instruments where the quality of explanatory
material has fallen significantly short of the standard that I
believe this House has a right to expect.
(Lab)
My Lords, I do not propose to address the public order issues. It
is a fairly simple issue, really. It is not the role, and can
never be the role, of the unelected House to seek to have the
last word. The last word on every issue belongs in the elected
House. Sometimes, it is true, it has to wait a year, if the
Parliament Act is used, but at the end of the day it has to be in
a position of owning what it has passed, so that the electorate
can take a view of what it has done. That is where the Government
are formed, not here. It is a simple issue, really.
Our conventions have been tested and have been found wanting. I
agree very much with the speech that we have just heard—I am a
member of the Delegated Powers Committee—but that is not the
issue. We have had case after case of the Government taking away
powers from Parliament to give executive authority to Ministers.
The House has debated this two or three times, but we have not
done much about it so far. The simple issue is this: the elected
House must own the decision.
I will upset a few people at the end of the evening; I am happy
to vote for my noble friend’s amendment but if the fatal
amendment is put then I intend to vote with the Government. I
will not be in a position after the next election of allowing the
then Opposition to claim, when issues arise, “You never voted
against it”. I will have at least one name in the Lobby. This is
not the first time this has happened; the noble Lord, , voted in opposition
against fatal amendments. We know that it has been reviewed, but
maybe it is time to look again at our conventions. I think the
last time they were reviewed properly was in 2006, by a Joint
Committee chaired by my noble friend .
I will not get confused—I agreed with about two sentences of the
speech from the noble Baroness, Lady Jones, on constitutional
issues. She has spent all week on social media misleading the
public about the powers in Parliament. The powers belong to the
elected House. It must be in a position to have the last word on
every issue.
(GP)
Can the noble Lord tell me how I misled anyone? I think it has
been the Labour Party that has misled people.
(Lab)
Anyone can look at what has been happening this week. It has been
misleading. The fact is that we are in a democracy and we are an
unelected House. Our job is very simple: we just ask the other
place to look at things again and again. At the end of the day,
it has to own the decision. How can it go to the public in a
general election if there are decisions that it cannot own? That
is our present system and no one has come up with a plan to
change it at this time.
(CB)
My Lords, I support both amendments before the House—that tabled
by the noble Lord, , and that tabled by the noble
Baroness, Lady Jones. I do so because, as the noble Lord said,
this is a constitutional outrage.
I take that position even though I have great sympathy with the
Government’s position on the substance of these regulations. They
are absolutely right to say that those who demonstrate are not
entitled to inflict more than a minor hindrance or delay on those
going about their daily business. Whatever the merits for which
the demonstration is held, protesters need to recognise that
their rights to freedom of expression and assembly are not the
only rights in play. The noble Baroness, Lady Jones, says that
this is an authoritarian law. It is not. Members of the community
have the right to get to work, take their children to school and
attend hospital appointments without being caught in a traffic
jam caused by protesters sitting in or walking slowly along a
road with the very purpose of disrupting the lives of other
people. That is simply outrageous.
However, the issue tonight is whether we approve regulations that
defy the will of Parliament, as expressed by this House when we
voted down on 7 February Amendment 48 of what is now the Public
Order Act, in the light of which Amendment 49 was not moved. I
voted with the Government on Amendment 48, and I was in the
minority. As we have heard, they are now bringing forward
regulations to achieve exactly the same objective. Respectfully,
it is all very well for the noble Lord, , to talk about the other place
being the dominant House, which it is, and say that we must give
way to it, but we should not do so when there is a constitutional
outrage, and not when, as we all know, scrutiny of regulations is
cursory at best.
The Government know very well that they can bring forward
regulations which we cannot amend and that the normal practice of
this House is not to vote them down on a fatal Motion. How is
that democratic? How can it be democratic that one of the Houses
of Parliament is unable to express its view in relation to the
substance of this matter?
8.15pm
(Lab)
With respect, no one is trying to stop this Chamber expressing
its view on this or anything else. What it is trying to stop is
the assumption that it is this Chamber that makes the final
decision. It is not. It is essential for the maintenance of the
constitutional arrangements we have that we always respect the
elected House, which, as my noble friend said, has to own those
policies because it is directly responsible to the electorate. So
it is not about discussing, it is not about revising, it is about
who takes the final decision.
(CB)
I totally understand that, and it is customary in this House to
ask the other place to think again. I am not suggesting that we
should have the final word; I am suggesting that tonight we
should vote down these regulations and invite—require, ask—the
other place to think again and to consider whether it really
thinks it appropriate to proceed by way of what we all agree is a
constitutional outrage, as the noble Lord, , said. There are occasions when
we have to stand up for constitutional principle, and this is one
of them. If the other place sends it back again, no doubt we will
give way because it is the elected House, but we are entitled to
express our view in an effective manner. It is all very well
regretting, but it has no effect whatever.
I agree with the comments of my colleague Tom Hickman KC and his
co-author Gabriel Tan in the blog that they put on the website of
UK Constitutional Law Association. They wrote, and they are
right, that the Government are seeking to obtain through the back
door of Parliament what they have been denied at the front door.
It is, they say, a
“remarkable act of constitutional chutzpah”,
and they are absolutely right.
It does not stop there because, as the noble Lord, Lord Hunt,
rightly said, the original Explanatory Memorandum to these
regulations—I have not seen today’s amended, improved
version—nowhere mentions that these amendments were defeated when
they were proposed to the Public Order Bill. It is worse than
that, as the noble Lord, Lord Hunt, knows, but it is astonishing
that the Explanatory Memorandum at paragraph 3.1, under the
heading “Matters of special interest to Parliament: Matters of
special interest to the Joint Committee on Statutory
Instruments”, has this entry: “None”. Is that not extraordinary?
Does it not demonstrate the contempt which the Government have in
this context for the proper processes of legislation in these
matters?
(Con)
I have been here for only four years, and I am still learning.
The noble Lord said earlier that if this statutory instrument is
voted down, the other House could be asked to think again and it
could bring it back. My understanding is that a statutory
instrument cannot be brought back.
(CB)
The Government can table a new statutory instrument any time they
like. They are perfectly entitled. They can table a statutory
instrument and invite us to consider it—or, far better than that
would be to produce primary legislation which we can debate
properly and can amend if we think it appropriate to do so and
which will then go back to other place for it to consider.
If it does not agree with us, we will, I am sure—as the noble
Lord, Lord Reid, rightly said—follow our customary practice and
give way, because it is the elected House. What is so
objectionable about this is that all of those procedures are
removed. All we can do, as he said, is express regret: we are
very sorry about this. Well, I express regret that the Labour
Front Bench is not prepared to see through the implications of
its own view that this is a constitutional outrage. It is
something that we should stand up against and vote against.
(Con)
My Lords, with little exception, I agree with what the noble
Lord, , has said. I start by having
considerable sympathy with the motives that have caused the
Government to come forward with this statutory instrument.
However, for the reasons that were advanced by the noble Lord,
, I feel that the process is
very defective. However, again, for constitutional reasons, which
I shall mention very briefly, I cannot support the fatal
amendment.
That, in summary, is my position; if I may, I shall elaborate a
little further. So far as the motives of the Government that lie
behind the statutory instrument are concerned, I share very many
of these views, as indeed does the noble Lord, . In a free society,
individuals have a right to demonstrate. However, their fellow
citizens have a right to go about their daily business without
unreasonable obstruction. I fear that, increasingly, we are
seeing on the part of demonstrators a disregard for the
obligations they have to their fellow citizens.
So I can well understand the motives that activate the Government
in bringing forward the changes in the statutory instrument.
However, for the reasons advanced by the noble Lord, , I have very real reservations
about the process that is being adopted. The process and its
defects were identified by my noble friend . He is entirely right,
and his report is extremely direct on the subject. The statutory
instrument is in fact designed to reverse the defeat in this
House earlier this year.
If that is a desirable thing to do, it should be done by primary
legislation. That is the point made by the noble Lord, . Amendments made to a Bill by
this House on Report can always be considered further in the
House of Commons and, where appropriate, they can be the subject
of ping-pong; that is the proper way forward.
A statutory instrument is an unamendable legislative device and,
in my view, one that should not be used to make significant
changes to the law, in particular to the criminal law. So one
needs to go to the purpose of this statutory instrument. The Home
Secretary set it out in yesterday’s debate in the House of
Commons. At column 55, she set out the four purposes of the
instrument, and said later, of the police, that
“we are trying to clarify the thresholds and boundaries of where
the legal limit lies, so that they can take more robust action
and respond more effectively”.—[Official Report, Commons,
12/6/23; col. 74.]
Now, that raises at least two pertinent questions. Either this
statutory instrument, in effect, does no more than tidy up
existing legislation and ensure that existing case law applies
equally across the statutory waterfront, or it is intended to
make significant changes to existing law. In the first case, it
must be doubtful whether the statutory instrument is required; in
the second case, if, as I suspect, the statutory instrument does
make substantial changes to existing law, it should be done by
primary legislation—and that is what this House intended to do in
January.
So, finally, we get back to process, which is fundamental to
tonight’s debate. I share all the reservations expressed in the
amendment of the noble Lord, . They constitute good reasons
why the procedure adopted by the Government is flawed. I would
like to think that if the amendment is passed—and in all
probability, I will vote for it—the Government will withdraw the
statutory instrument and resort to primary legislation.
I am afraid that I cannot support the fatal amendment moved by
the noble Baroness. Here, I find myself in agreement with the
views expressed by the noble Lords, Lord Reid and . The House of Commons passed
this statutory instrument last night by a very substantial
majority. The fatal amendment has a much more dramatic
consequence than those occasions when the House amends a
Government Bill. In such cases, the Bill can be further
considered by the Commons. However, if this House carries the
fatal amendment, the statutory instrument is killed. That goes
beyond that which an unelected House should in general do.
(LD)
The noble Viscount seems to be saying that the difference here is
that if this House votes down a measure in primary legislation,
it goes back to the Commons to be reconsidered. That is not what
happened in this case: the amendment was introduced in the House
of Lords, not the other place, we voted it down and it
disappeared. It did not go back to the other House. Exactly the
same thing will happen tonight if noble Lords vote for the fatal
amendment.
(Con)
I entirely understand this point, but we need to draw a
distinction between amendments that this House makes in Committee
and on Report, when it is possible for the House of Commons to
consider again and come back to this House, and—
(LD)
Will the noble Viscount give way?
(Con)
May I just finish this point?
In this particular case, if we pass a fatal amendment, as
advocated by the noble Baroness, we will be killing a statutory
instrument which was supported by the House of Commons last
night. I am very unwilling to support that proposition as a
precedent, and I agree with the views expressed by the noble
Lords, and Lord Reid.
I say this as one who was in the House of Commons for 30 years. I
am under no illusion as to the nature of the House of Commons. My
father used to speak and write about the “elective dictatorship”.
He was entirely right, but at the end of the day we have to
decide where authority lies, and however imperfect its authority
may be down the road, it does have the authority of an election,
and we do not have that. I give way to the noble Lord if he
wishes to intervene further.
(LD)
I am very grateful, but the noble Viscount makes another error in
his assertions. This was not an amendment to the Bill introduced
by the Opposition in this House. It was a Government amendment
introduced in this House, which was defeated by this House, which
means that the amendment could not then be considered by the
House of Commons. Therefore, there is no practical difference
between the voting down of that Government amendment, killing it
completely, and voting for a fatal amendment to the statutory
instrument, which would kill it completely.
(Con)
The noble Lord is cavilling at this point. We are, in a sense,
talking about principle. Where does authority, in the end, lie?
It lies down there because they are elected. It does not lie here
because we are not elected. It is for that reason that I shall
vote for the amendment moved by the noble Lord, and I do not feel
able—although I agree with a great deal that the noble Baroness
said—to vote for the fatal amendment.
8.30pm
(Con)
My Lords, I fear I may be ploughing a lonely furrow tonight in
supporting the draft regulations, speaking to the regret
amendment in the name of the noble Lord, , and against the fatal
amendment in the name of the noble Baroness, Lady Green.
Noble Lords
Lady Jones.
(Con)
I beg her pardon —the noble Baroness, Lady Jones of Moulsecoomb.
I have in fact read her round robin email and the accompanying
legal opinion, and we have discussed these regulations, and of
course I have read the report of the Secondary Legislation
Scrutiny Committee.
I will not dwell on the process or the constitutional issues as
such; the latter were well encapsulated by the noble Lords, Lord
Reid and , respectively. However, I do
not agree with the catastrophist rhetoric of the noble Baroness,
Lady Jones, on this being somehow a constitutional crisis.
The statutory instrument is quite simple and straightforward,
seeking to strike a balance between freedom of speech, freedom of
protest and assembly and the rights of the public to go about
their daily business unhindered and unmolested. It is also about
legal clarity for both the front-line police and the courts. The
upsurge of large-scale disruption is not something any Government
can ignore, especially as the effectiveness of the police and the
public perception of them will be impacted by operational and
legal uncertainty. As of last Thursday, as the Minister said,
£4.5 million has been spent on diverting local policing
priorities—equivalent to over 13,000 shifts—away from theft,
burglary, violence against women and girls, knife crime, et
cetera, and there have been 86 arrests and the bureaucracy that
that involves, mostly for breaching Section 12 of the Public
Order Act 1986.
Any Government—every Government—have a responsibility and a duty
to protect its citizenry. Let us also remember that the police
are currently in a very difficult and unenviable position. Slow
walking has an impact not just in a confined geographical area
but in a wider community and economic sense, and it has an effect
on working people, businesses and public services, emergency
services, hospital appointments, funerals, et cetera. At present
the police have to balance the rights of protesters to exercise
their rights under the Human Rights Act and the European
Convention on Human Rights, and the impact of taking time to
consider these competing interests. That leaves the police open
to charges of partiality, bias, weakness and incompetence. Such a
situation obviously gives rise to anger from those most affected
by protestors’ selfish exhibitionism, which is often enacted to
garner social media coverage, as well as to vigilantism, which of
course causes further public order incidents. It is unrealistic
not to imagine that such a situation arises not from a single
event but from cumulative and repeated events and actions,
perhaps over several days, which are more than minor.
I posit that giving the police different, not enhanced, powers to
close down demonstrations more expeditiously is in the wider
public interest. The regulations do not create more powers but
make existing powers clearer and policing more consistent. It is
important to remember, as the Minister said earlier, that they
also align the threshold of serious disruption with that in the
Public Order Act 2023, a definition arising from recent case law,
and as such, the Government are right to use the delegated powers
in Sections 12 and 14 of the Public Order Act 1986.
Like policing, governance is best undertaken not just by
democratic accountability and authority but by consent. Quite
evidently, the wider public are demanding that Ministers tackle
the problem of deliberate and wilful disruption—actions that do
nothing materially to change policy but which also do not
persuade sceptical citizens and are in fact punitive and
pointless in equal measure.
I do not believe that this statutory instrument is a radical
departure that sets a dangerous constitutional precedent. It is
certainly not, for instance, a draconian assault on freedom of
speech and civil liberties. Comparisons with the Suffragettes,
which I think have been used by some members of the Green Party,
are of course specious: we have had universal suffrage elections
since 1928.
It might be appropriate to turn now to some of the criticisms and
observations in the committee’s report—
Noble Lords
Oh!
(Con)
—as I wind up.
A noble Lord
Hear, hear.
(Con)
On consultation, I think it is unreasonable to expect the
Government to undertake a comprehensive consultation process when
the imperative is to correct quickly a legal loophole. I do have
sympathy with the late tabling of the amendments on Report; I
think that is a very fair point to make.
I shall finish with the words of the noble and learned Lord,
. The noble Lord, , talked about the importance of
conventions. With that in mind, the noble and learned Lord,
, said in 2006 that
“civil disobedience on conscientious grounds has a long and
honourable history in this country … But there are conventions
which are generally accepted by the law-breakers on one side and
the law-enforcers on the other. The protesters behave with a
sense of proportion and do not cause excessive damage or
inconvenience. And they vouch the sincerity of their beliefs by
accepting the penalties imposed by the law. The police and
prosecutors, on the other hand, behave with restraint”.
That is what this regulation is about.
(CB)
My Lords, I make no comment on the merits of the policy that this
proposal would introduce; it is the manner in which the
Government have proceeded that has caused me, as it has my noble
friend , great concern. The Home
Office has behaved in a way for which I can find no kinder word
to use than “disreputable”.
For a start, the Explanatory Memorandum—whichever edition we are
in now—did not mention the fact that the proposal had been
rejected by your Lordships. When the committee quite rightly
inquired why that was not mentioned, the reply could have won an
Oscar for weasel wording:
“The details that have been included … are those which we …
considered relevant to the document”.
When you are caught bang to rights, the proper response is an
apology, not an obfuscation. Yet more astonishing —my noble
friend has already referred to
this—is that in the section of the Explanatory Notes outlining
anything that might be of interest to Parliament or the JCSI, the
single word “None” appears.
Then there is the question of consultation. The Home Office
ignored the Government’s own consultation principles and
consulted on a selective and skewed basis. It brought to mind the
Sellar and Yeatman description of the passage in Magna Carta
which they alleged said:
“No baron should be tried, except by a special jury of other
barons who would understand”.
In this case the Home Office set out to consult a selection of
people it knew would support it, not those who might have a
different view. A kind description would be that that was “not
straightforward”.
Tom Hickman KC, the professor of public law at UCL, who has
already been mentioned, pointed out:
“Where a public authority chooses to conduct a consultation
process, that consultation must be conducted properly and
fairly”.
He pointed to a ruling by the Court of Appeal that a consultation
conducted before certain Covid-19 regulations had been unlawful
because it had been conducted on an entirely one-sided basis. I
do not see how the consultation carried out by the Home Office in
this case could be described as proper and fair.
This instrument and the Explanatory Memorandum —again, whichever
edition you care to quote—must have been signed off by a
Minister. I think we might be told which Minister it was, and
which Minister took the view that this was an appropriate way to
treat Parliament. I hope the Minister here will be able to tell
us. I do not want to see, and I am sure your Lordships do not
want to hear, any pabulum about collective responsibility.
As I suggested earlier, I do not take a view about the merits of
what this instrument would achieve. My concern is for the way in
which Parliament is being treated and for the apparently
resentful and sullen way in which the committee’s questions have
been answered.
I am sorry—and I do understand what the noble Lord, , was saying earlier on—that His
Majesty’s Opposition do not wish to go further than regretting
what is in front of us. Governments shrug off regrets; they make
no difference. As the noble and learned Lord, , said in the Queen’s Speech
debate last year, if we make no difference, why do we not just go
on talking? Incidentally, I should tell your Lordships that, in
my recent email conversations with the noble and learned Lord, we
have focused on England’s chances in The Ashes, and I know that
we all send him our warmest good wishes in his convalescence.
This brings me to the fatal amendment in the name of the noble
Baroness, Lady Jones of Moulsecoomb. At this point, it is very
important to recall that it is a very easy thing for a Government
to withdraw an SI, redraft it, relay it and start the process
again. It is also—and, of course, the business managers will balk
at this—not that difficult to achieve a change by primary
legislation in a relatively short time. As some noble Lords have
said, that is actually the right way to proceed. It is not just
what you want to achieve: it is the propriety of the means that
you use to get there. If noble Lords do not want this sort of
thing to happen again, we should vote it down, so if the noble
Baroness presses her amendment to a Division, I shall support
her.
(CB)
May I ask the noble Lord whether, with all his decades of
experience of parliamentary procedure, he has ever seen a set of
regulations that so defies constitutional propriety?
(CB)
I think the noble Lord will know the answer, and it is no.
(Con)
My Lords, I start by joining the noble Lord, , in the comments that he made
about my beloved home city. I also pay tribute to the
Nottinghamshire Police and all the emergency services for their
responses to the dreadful events in the city today. Clearly, I
send my condolences to the friends and families of those who were
dreadfully murdered.
I should also start by saying that I very much understand some of
the frustration that has been expressed in the debate so far
today, whether it has come from the noble Lord, , my noble friend Lord Hunt on
behalf of the committee, or in various other speeches that we
have heard. It is important that the Government produce
good-quality Explanatory Memorandums. They have not covered
themselves in glory in this particular situation. I care about
procedure— I do, very much—but I also care very much about the
way in which this House conducts itself and the relationship that
we have between this House and the Executive. I feel that, over
the last few years, it has deteriorated. It has become
increasingly hostile, and that has been clearly evident in the
way in which some of the debates that we have held on a range of
legislation have occurred. Sometimes, we have made our points in
ways that have not showed any sense of disrespect to the
Government—because that is not for the House to worry about—but
have too often, I feel, shown disrespect to members of the public
who take a particular position on things that some of us may not
agree with.
8.45pm
As much as this debate is about procedure and good order, if we
are to move beyond the situation we seem to have got ourselves
stuck in—how we deal with some of these difficult issues and how
we react to some of the ways in which the Government bring
forward legislation, which are not necessarily always as good as
they need to be—and to be even more effective in discharging our
responsibilities as the second Chamber of Parliament, we have to
look also at the bigger picture when we consider today’s
issue.
Before I move on to the bigger picture, I will address some of
the points raised about procedure. In introducing this debate, my
noble friend the Minister set out that the situation in respect
of this secondary legislation is not quite as straightforward as
some noble Lords are trying to portray in their opposition to
this procedure in this context. As I understand his argument,
some of the substance of this secondary legislation did go into
the relevant primary legislation, but in in a way that was
inconsistent across the piece. We have this very unsatisfactory
situation now whereby there is a lack of consistency for the
police in being able to uphold and meet their various
responsibilities. That needs to be understood and remembered; it
is not as if the Government have come forward with secondary
legislation to introduce something that has not already featured
in legislation.
On the issue raised in the exchange between my noble friend
and the noble Lord, , it is important to understand
that, while it is true that the rejected amendment in the primary
legislation was a government amendment, in ping-pong, it is not
possible for the Government to reintroduce an amendment there. We
are therefore in very different situation. The reason I lay all
that out is that some of the arguments against what the
Government are trying to do here do not quite add up. We have to
concentrate on the substance of this secondary legislation and
what the Government are trying to do through it, rather than just
on the procedure.
We hear a lot in our debates about the importance of various
human rights and things which are important to uphold in the
context of peaceful protest. All of that is very important, but
those are not the only essential ingredients to a healthy and
cohesive society. Common standards and social norms are critical
to underpinning our communities. When we look back to 2019 and
the events of that summer, what we saw was a completely new way
of protesting in London. London was brought to a standstill for
five whole days. I was pleased to hear the noble Lords, and , criticise that form of
protest and to make it clear that it is unacceptable. However, we
also have to remember that we did not do that in 2019. For
several days, Waterloo Bridge was closed and our police were not
doing anything about it. A lot of us in positions of authority
were supporting that situation because we were sympathetic to the
cause of the protesters. A lot of our fellow citizens felt
completely confused and let down, and they could not understand
why we found that acceptable.
Since then, of course, the Government have introduced a range of
different legislation to try to deal with these matters. As we
have heard, in the course of trying to pass that legislation,
things have become increasingly tense and hostile. The laws we
have passed are more complex than they should be to enable the
police to do what our fellow citizens want them to do. They want
to be sure that when protesters are bringing our roads and cities
to a standstill, the police act swiftly, do what is expected of
them straight away and do not create a situation where people
feel it necessary to take the law into their own hands, and in
doing so attract the criticism of the police.
Our inaction and unwillingness to stand up and call this out in
2019 has had consequences. The consequences are legislation. The
Government have tried to pass that legislation in as
straightforward a way as possible and it has proven to be
incredibly difficult for all sorts of reasons, as we have heard
and discussed this evening. If we believe that there is an
opportunity for us as a House to show that we really want to
respect the law- abiding citizen, who wants this clarity, and
show them we are on their side, I hope that all noble Lords will
join me tonight in supporting my noble friend the Minister by
following him through the Division Lobby.
(Non-Afl)
My Lords, the noble Baroness, Lady Stowell of Beeston, raises
some important broader questions to consider but I think she has
overcomplicated what is a more straightforward problem. These
instruments were brought into this House by the Government on
Report, which was extraordinary enough in itself; the Government
lost, and they have come back again. We are told that they have
to come back because something really dramatic has happened:
there is a whole new set of circumstances and the police do not
have the powers to police this really difficult situation. Then,
we find out that the new tactics are basically a load of people
walking slowly in the middle of the road. People think, “Why
don’t the police just arrest them, then?” They have a huge amount
of power under public order legislation.
I was speaking at a meeting the other night and somebody said,
“Why are the police not using the Highway Code to stop people
walking slowly down the middle of the street?” It makes no sense
that the only way the police can deal with this is if a statutory
instrument is brought in that, constitutionally, completely warps
the way the law should be made.
There is a serious danger that the law, and secondary legislation
in particular, is being used because there is somehow a failure
of the police to police and a failure of the Government to ensure
that the police police. The frustration in all this is that while
the police say that they do not have the powers to stop people
marching slowly in the middle of the road, blocking everyone off,
they suddenly spring into action rather quickly as soon as a
member of the public gets frustrated and starts pulling down the
barriers, dragging that person off, arresting them and so on. You
can see that this is a mess. The Government have made the
situation worse, and using the law in this way is discrediting in
every possible way.
I saw somebody waving a placard at me on the way in that said,
“Kill the Bill”, and I agree. I want this Bill to go away. I
would love it to disappear. I hate everything about a lot of the
things that were brought in through that policing Bill. Any civil
libertarian does not want to lose liberties in the way we did; I
agree with all of that. The noble Baroness, Lady Jones of
Moulsecoomb, has said—and I take her at her word—that she has not
brought in her fatal amendment lightly. She has lost sleep over
it. That is fair enough; she is doing what she thinks is right in
good conscience.
In the end, if the Government are behaving constitutionally
irresponsibly and tearing up conventions, I am not prepared to
imitate them. As far as I am concerned, the only way that we can
behave, in good conscience, is to condemn the Government for what
they have done, call on them to get the police to do their job
and stop using the law inappropriately, and ultimately express
our regret. We should not imitate them by unconstitutionally
asserting in an unelected Chamber that we overthrow the elected
House.
I so often disagree with the elected Members up the Corridor that
it is boring. Who cares what I think? I am here not through the
electorate or the public. We are all here because somebody put us
here—goodness knows, that is a controversial enough matter—and we
have no more legitimacy other than that somebody somewhere
thought we were a crony at some point. They made a mistake there
with me, let me tell you.
I am afraid that we should not put a fatal amendment through.
However, this should be condemned absolutely through the regret
amendment. I support the Labour amendment.
(CB)
My Lords, I will be very brief, your Lordships will be grateful
to know. I support the regret amendment in the name of the noble
Lord, , which I think is the right
thing. I think the arguments made by the noble Lords, Lord Reid
and , are profound. The vote last
night was clear. The Commons had the chance to get rid of it and
did not.
The comments of the noble Baroness, Lady Fox, made me think that
it is important to remind us of just one thing. All the criticism
of the police has been that, in the past, they have done too
little when protestors have been doing too much. They have not
done that just because they were being incompetent—although some
may argue they were—but because the Supreme Court made a decision
a few years ago which left them with some dilemmas. It said that
obstruction of the highway was not merely a simple offence
anymore. Obstruction of the highway requires no intent or
recklessness. It is an absolute offence; you either block the
road or you do not. But the Supreme Court said that far more than
that has to be considered when making a decision about arresting
someone. Is there an alternative route? Is there something else
you could do to avoid this obstruction? That is fine if there is
a planned protest. It is not fine if, at 5pm today, some poor
inspector is confronted with a problem and has to resolve it.
That is why this Act has been really important.
Part of this conclusion is about the definition. I agree entirely
that this is the wrong way to include this definition. I do not
think anyone, even the Government, argued that it is the right
way. That is why I support the regret amendment. Providing an
increased lack of clarity for the police is likely to lead to
more problems rather than less. The problems were not just around
the lack of clarity from the Supreme Court decisions but due to
some of the protests that were taking place and the disruption
they were causing—for example, around Heathrow and many
significant things we need to keep our people safe and secure.
The law was being abused in a way that was hurting too many
people.
For all those reasons, I support the regret amendment put forward
by Labour. I cannot support the noble Baroness, Lady Jones,
although in my humble view it was the most powerful speech she
has made while I have been here—though I am sure she has taken
other opportunities that I have not seen.
Noble Lords
Front Bench!
(CB)
I am extremely grateful to the House, and I will be very
brief.
No one has mentioned the last time we had a debate, with great
passion, on the issue of statutory instruments and voting them
down in 2015. I was torn on that occasion between what was a
rather elegant delaying Motion, rather than one defeating an SI,
and the standard regret Motion. I find myself in a very similar
position now. I will not repeat the constitutional outrage that I
think this statutory instrument is, or the arguments for
maintaining the precedent, protocol and conventions of this House
in not defeating statutory instruments, but this cannot go on for
ever.
9.00pm
The situation regarding statutory instruments is unacceptable.
They are 40% of our legislation but they are not legislation—they
are executive orders that come before Parliament. I hear my
friends, the noble Lords, and Lord Reid, talking
passionately about the supremacy of the House of Commons, and I
passionately agree. The noble Lord, , said that we can ask it to
think again and again and can push that forward, but we cannot do
that on these executive instruments. On statutory instruments, we
cannot ask the Government to think again. We cannot amend or
delay them. It is take it or leave it, and that is not a
satisfactory way to make legislation on issues as complex and
nuanced and difficult to resolve as those that we are facing
today.
For that reason, I would like to see from this debate a shared
understanding. I do not think that anyone other than the
Minister, God bless him, has suggested that this has been a
satisfactory process. It has been a disgraceful process. We ought
to take away from this a real conviction that we must look
carefully and change the way in which we deal with statutory
instruments.
(LD)
My Lords, we on these Benches associate ourselves with the
remarks of the noble Lord, , on the tragic events in
Nottingham.
Like the noble Lords, and , I will not say much about
the substance of the SI. If the Home Office had realised that the
Public Order Act 1986 needed to be amended before the Bill had
left the other place, we would not be here now.
I want to talk about the constitutional issue, described by the
noble Lord, , of a Government
changing primary legislation by means of secondary legislation
within months of this House having voted against that primary
legislation. As we have heard, this is unprecedented, or, as the
noble Lord, , put it, a constitutional
outrage.
On Monday, this House will have the Second Reading of the British
Nationality (Regularisation of Past Practice) Bill. This primary
legislation retrospectively changes primary legislation by means
of a two-clause fast-tracked piece of primary legislation. Not
only is this the proper way of amending primary legislation but
it shows that it can be done quickly and easily. There is no need
for the will of this House, expressed through a recent Division,
to be overruled by means of secondary legislation when a
single-clause fast-tracked Bill could have done the same job
without creating an unconstitutional precedent.
Noble Lords opposite may say that it is no big deal, but the
Prime Minister said that his Administration would have
“integrity, professionalism and accountability at every
level”.
I will return to the issue of integrity in a moment, but failing
to amend the 1986 Act in the other place clearly shows a lack of
professionalism, and failing to correct the mistake by means of
primary legislation shows a clear lack of accountability because,
as the noble Lord, , said, scrutiny of secondary
legislation is cursory.
On integrity and the resignation honours row,
, a senior Government Minister,
said yesterday on the BBC Radio 4 “Today” programme:
“The appropriate procedure was followed”.
He went on to describe it as
“a process we are all familiar with as part of the constitution …
it is appropriate to look at all these processes. They all have
their own coherence in accordance with past practice and due
process … All Governments work according to precedent … those are
protocols that govern this particular procedure, and I think
Governments overall have been criticised sometimes for departing
from due process. I think it was appropriate and right that the
Prime Minister and the Government followed due process in this
way … I know it’s old fashioned to want to use precedent and
independent institutions to establish how all these sorts of
things should be decided, but then precedent and independent
institutions are, I think, the two of the constitutional bulwarks
that are important”.
This House is an independent institution, and this SI breaks
long-established precedent. In answer to a question about
changing precedent in connection with resignation honours, said:
“The inference of the question is that we should alter precedent,
and that we should in some way say to independent institutions
that they should operate in a different way from which they have
been constituted. I think what we have here are the existing
constitutional machinery working as it was designed to do”.
So there we have it: a Conservative Government who believe that
independent institutions should not operate differently from how
they have been constituted, and that precedent should not be
altered apart from when it suits them. That is the very
definition of a lack of integrity.
This House voted against the provisions in this statutory
instrument by a majority in a Division on primary legislation in
February this year. There is no precedent to overturn a decision
of this House on primary legislation by means of secondary
legislation. I am reminded of the words of the noble Lord, , addressing the
amendment to deny the Illegal Migration Bill a Second Reading,
which he considered unconstitutional. He said:
“I do not think that any Member of this House who respects its
values and its role could possibly go through the Lobbies and
vote for that amendment”.—[Official Report, 10/5/23; col.
1801.]
I adapt his words and apply them to this situation: I do not
think that any Member of this House who respects its values and
its role could possibly go through the Lobbies and vote to allow
this statutory instrument to pass.
Noble Lords on the Labour Benches will be complicit in
undermining the status of this House if they do not vote for the
fatal amendment. The noble Lord, , said that the Official
Opposition will respect convention and not vote for the fatal
amendment. Why, when the Government have not respected
convention? I say to the noble Lords, Lord Reid and : of course it is right that the
other place should have the final say, but if we vote down this
statutory instrument, the other place can introduce a one-clause
Bill to achieve exactly what this statutory instrument is trying
to achieve in a non-constitutional way.
If, as appears ever more likely with each passing day, there is a
change of Government at the next general election, noble Lords on
the Conservative Benches will have created a precedent that they
are likely to regret for many years to come, when the incoming
Government use this precedent to undermine the will of this House
in future. We will vote for the fatal amendment.
(Con)
My Lords, I thank all noble Lords for their contributions to what
has been a fascinating and powerful debate. Before I start my
response, I join the noble Lord, , in his remarks about the
situation in Nottingham. As he did, I thank the emergency
services and express my sympathies to the victims and their
families.
I am obviously going to refute the allegation that this is in
some way unconstitutional, or indeed an outrage. I have already
set out why the Government have brought forward the measures, and
the fact that it is indeed proper. The sequencing of debates and
votes during the passage of the Public Order Act 2023 meant that
the House of Commons was unable to consider the measures. Now
that the elected House has approved the measures, we must respect
its will and do the same—a point that has been made powerfully by
a number of noble Lords.
The delegated powers being used existed prior to the introduction
of the Public Order Act 2023. The powers were available for the
Government to use during the passage of the Act—these are
comments I made in my opening speech. Those powers were
scrutinised by the Delegated Powers and Regulatory Reform
Committee, which recommended that a definition of
“serious disruption to the life of the community”
be included in the Police, Crime, Sentencing and Courts Act 2022,
coupled with a power to amend the definition by affirmative
procedure regulations. This recommendation was accepted and
implemented in full.
It is entirely right that the Executive use powers conferred by
both Houses of Parliament to allow the elected Chamber to
consider the proposed change in law. The other place has now had
that opportunity to consider these measures and has approved
them, following debate on the Floor of the House. So this is not
defying the will of Parliament, as some have suggested, or
committing a constitutional outrage. As the noble Lords, Lord
Reid and , pointed out, we are actually
respecting it. This cannot be sent back, so to not do this now
would be to enshrine a lack of clarity and consistency in protest
law, as my noble friend Lady Stowell noted. That will affect the
police, the public and of course protesters themselves. Any delay
in this fast-moving situation risks, as I pointed out in my
opening remarks, continuing to encourage the public to take
matters into their own hands—a point that was very well
articulated by my noble friend Lord Jackson.
To the noble Baroness, Lady Fox, who knows I respect her greatly,
I say that this is enabling the police to do their job with more
clarity—a point that the noble Lord, , made with considerable
force.
My noble friend Lord Hunt asked some very sensible and searching
questions about the Explanatory Memorandum, which I would like to
address. To the noble Lord, , I say that the Government
published the Explanatory Memorandum and have updated it. The
primary focus of an Explanatory Memorandum is to provide clarity
on the content of a statutory instrument’s provisions.
Additionally, the vote excluding the similar measure from the
Public Order Act was only held earlier in the year. All the
information on the vote is readily available in Hansard.
That said, we recognise the Secondary Legislation Scrutiny
Committee’s criticism and the importance of transparency in
Explanatory Memoranda. So I can confirm, as has been noted, that
the updated memorandum has been published. It was not published
before the debate in the House of Commons, but the changes to the
Explanatory Memorandum are relatively minor; they do not add new
information. They reference the votes and clarify the extent of
targeted engagement, and are in direct response to concerns
raised by the Secondary Legislation Scrutiny Committee. The Home
Secretary set this out clearly in yesterday’s debate in the other
place.
On the consultation, another subject that has been raised, I
again have to refer back to my opening remarks. This statutory
instrument does not create new powers. The Government have always
been clear that the delegated powers were needed to be able to
quickly respond to evolving protest tactics. As they do not grant
new powers to the police but clarify the extent of existing
powers, it was deemed disproportionate to carry out a full public
consultation. Targeted involvement with the National Police
Chiefs’ Council, the Metropolitan Police Service and other police
forces was the appropriate approach. All have welcomed clarity in
the law, and the Metropolitan Police Service specifically
welcomed clarity as to how the police should consider serious
disruption in relation to imposing conditions.
The noble Lord, , suggested that new powers were
being created and referenced the Chief Constable of Greater
Manchester Police. As I have mentioned, and I have to stress
again, these measures do not create new powers but clarify
existing ones. The Commissioner of the Metropolitan Police
Service, the force most affected by protest in England and Wales,
has asked for further clarity in the law. I think it is very
evident from the events we are seeing at the moment how
significant and necessary that clarity is.
I do not think there is much point in me saying very much else in
answer to the questions. I think I have addressed the majority of
the issues that I did not address in my opening remarks. As I
said earlier, I am grateful for the constructive and helpful
questions. I will take some of these reflections back to the
department and to my noble friend the Leader of the House, who is
not here at the moment. These regulations are designed to ensure
public order legislation is clear, consistent and current. They
will also support the police in striking the correct balance
between the rights of protesters and the public. I commend them
to the House.
9.15pm
(Lab)
My Lords, I thank everyone who has taken part in what has been an
interesting debate. I start by saying to the noble Lord, Lord
Jackson, that nobody is saying that the current protests that we
have seen are acceptable. We all agree that something needs to be
done about it and that they are unacceptable. The whole debate
about the instrument before us is around the appropriate way for
the state to respond in balancing the rights of protesters and
the public.
My contention is that the Government, through secondary
legislation, are changing various measures that we only just
passed in the Public Order Act—including, for example, the
threshold that the noble and learned Lord, , referred to, where “more than
minor” was linked just to the particular offences of tunnelling
and locking on. Indeed, I was rebuked when I said that that
threshold was too low and we should have a higher threshold; it
was said to me that it refers only to the offences of locking on
and tunnelling. As the noble and learned Lord, says, what the Government have
done—they actually pray in aid the noble and learned Lord, who we
have heard is very unhappy with the process—is extend that. That
is what this is about.
There has been no opportunity for anyone in this House to say
that that is inappropriate as a way of controlling protests.
Nobody has been able to say that that threshold is inappropriate;
we just have to accept it because it is done by secondary
legislation and is unamendable. That is the point.
Then we come to the whole point of process, which is the point of
my regret amendment and the point of debate for us all here.
There are choices before us in how we respond to the fact that
the Government have driven a coach and horses through the way
that parliamentary democracy in this country works. There is
absolutely no question that that is what they have done.
The convention does not say that you change primary legislation
by secondary legislation. The Secondary Legislation Scrutiny
Committee says that it cannot find another example of that being
done. If you cannot find another example of it being done, it
probably means that the convention is that you do not do it.
Therefore, the convention must be that, if you want to
significantly change legislation with respect to protests, you do
so through primary legislation. I think that is the majority
view—apart from one or two people shaking their heads at me,
which is fine. The challenge before us is how we respond to the
fact that the majority of people, I suggest, in this place think
that the Government have acted inappropriately in dealing with
this issue. That is the question.
You might say that we should do nothing about it and that it does
not matter. The Tory Whip will say, “Pour in. Vote down Coaker’s
amendment. Support the right to lock up all these Just Stop Oil
people. It doesn’t matter. Convention doesn’t matter. The way the
constitution operates in this country doesn’t matter. Pour in.
Just vote it down. He’ll shut up in a minute, it’s fine”. But
what has happened is absolutely outrageous. I say to noble Peers
opposite that this is an opportunity for the Conservative Members
of this House to abstain and say that they accept that this is
the wrong way for Parliament to proceed with respect to this
matter. Do not just pour in and say it does not matter. It
fundamentally matters.
(Con)
The noble Lord, , is giving a customarily
powerful closing speech. Will the noble Lord at least acknowledge
that it is not just, as he is alleging, the Government who have
driven a coach and horses through convention over the past few
years, but that Parliament, in this House and down the Corridor
in the other place, has also done that? My contention earlier was
that it takes two to tango. We have got to a situation here
whereby the Government are being forced to do unconventional
things because of the way in which we collectively have had to
conduct ourselves. It should be for him and I to agree that we
need to move on and find a better way in which to conduct
business than we have seen of late. It requires us all to reflect
and not just for the Government to do so—although I accept that
they need to do so.
(Lab)
That leads me nicely on to the point that I am trying to make.
Conservative Peers have a choice to make as to how they respond
to the way in which the Government have undermined the
conventions of this House by abstaining on the vote. I have a
choice to make and I am saying to my party from the Front Bench
that we should respect the conventions of this House by not
voting down the will of the elected House of Parliament. I am
being criticised for not supporting the fatal amendment. As the
noble Lord, , and the noble Baroness, Lady
Jones, have just said, they think that I should be suggesting
that to my party. That undermines convention and I will not
recommend it to His Majesty Opposition; it is inappropriate. That
is the way in which I am seeking to respect conventions of this
House—by not suggesting to His Majesty Opposition that they
oppose what the elected Government of this country have put
forward.
I have to accept my responsibility and make suggestions on how my
party should vote on this. The noble Lord, , will have his view about how
he thinks his party should vote. The noble Baroness, Lady Jones,
has outlined how she thinks the House should vote. I am saying to
Conservative Peers that they have an opportunity now, through the
vote they make, to deliver their verdict on how the Government
have operated with respect to the conventions of this House. I
contend that they have driven a coach and horses through the
conventions of this House, whereby primary legislation is not
changed by secondary legislation.
At its heart, that is what my regret amendment is about—trying to
respect the conventions of the House while expressing regret with
respect to the way in which these public order regulations have
been carried through. At the end of the day, that is a choice
that people will have to make. I have made my choice with respect
to my party. I am saying that we should abstain on the fatal
amendment but support my regret amendment. Others will have to
make their choice. I hope that they make the right one.
[Division 4
Division on Lord Coaker’s amendment
Content
177
Not Content
141
Amendment agreed.
Held on 13 June 2023 at
9.23pm](/Lords/2023-06-13/division/D9B4F40F-6723-4302-AEBA-16D916C78A71/LordsChamber?outputType=Names)
9.33pm
Amendment to the Motion
Moved by
Leave out all the words after “that” and insert “this House
declines to approve the draft Public Order Act 1986 (Serious
Disruption to the Life of the Community) Regulations 2023 because
Parliament has already rejected during consideration of primary
legislation the proposals contained within those
Regulations”.
(GP)
There are two ironies here. The first is that I do not think for
one moment that this piece of legislation is going to catch any
more protesters. People who think that they are defending the
planet are very dedicated and creative. They will come up with
other ways of protesting, so this particular law is likely to
catch other people.
The second irony is that I, who complain endlessly about all of
the ridiculousness that happens here and am very short of
patience when I am told not to run in the corridors and things
like that, am defending the status quo. That is an irony—that I
want us to respect the conventions. Therefore, I should like to
test the opinion of the House.
[Division 5
Division on Baroness Jones of Moulsecoomb’s amendment
Content
64
Not Content
154
Amendment disagreed.
Held on 13 June 2023 at
9.35pm](/Lords/2023-06-13/division/3FD85528-953A-4933-B064-4CFBE70E5624/LordsChamber?outputType=Names)
See col. 1950 for explanation of mistake in voting figures.
Motion, as amended, agreed.
|
