The role of Lord Speaker in the House of Lords is, like the roughly comparable role in the Commons, a non-partisan one. That means, even on Twitter, an obligation to use extremely moderate, understated language.
Which is what is to be found in this Tweet from Lord McFall on 11 May, noting that the House “scrutinises every scrap of it to flag concerns. Here, eagle-eyed peers highlight the use of regulations to bring in measures previously rejected by Lords in a vote”.
Green Party fatal motion
If you want to jump straight to the point here, you can help fight this government action by joining more than 40,000 other people in signing this petition from my fellow Green peer Jenny Jones.
But if you want to understand the terminology, and exactly what’s happening, here’s the longer story.
The tweet points to the report of the secondary legislation scrutiny committee. If you’ve never heard of it, you’re certainly not alone. In the UK there’s very little political education in schools, colleges and universities, but even if there were, it would have to get pretty deep to get into ‘secondary legislation’, which is supposed to be the minor regulations that set out the detail for implementing laws that the government has debated in great detail.
Secondary legislation can be ‘affirmative’ (the Houses have to approve it), or ‘negative’ (there’s only a debate if someone demands it, otherwise the rules slip through undiscussed).
By parliamentary convention
We spend a lot of time arguing about which category various laws should fit in. But really, it doesn’t matter. For neither House can amend secondary legislation, also known as statutory instruments (SIs). They can only block them. And by convention, they almost never do.
‘By convention’ is an interesting term. As Sangita Myska pointed out to me on LBC at the weekend, we’re told convention is that the resigning prime minister gets to appoint a resignation honours list, promoting friends and allies to the House of Lords. Yet Harold Wilson appointed ONE person in his list. Tony Blair and Gordon Brown, none. Boris Johnson tried for at least 16.
But also by convention, with our unwritten, uncodified constitution, parliament is (under the Crown – let’s not go there) sovereign. That’s what the Brexiters told us the vote in 2016 was all about, sovereignty.
Which is where we get to current events and the draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations on which the House of Lords will be voting on Tuesday.
Secondary legislation scrutiny committee
I’ll go direct to the secondary legislation scrutiny committee in its own words:
“The Regulations are intended to assist the policing of protests, such as those carried out by Extinction Rebellion and Just Stop Oil. They would introduce changes to the Public Order Act 1986 which would allow the police to intervene in a wider range of circumstances, including by reducing the threshold for ‘serious’ disruption. Other changes include allowing the police to consider the cumulative impact of repeated protests in the same area and incorporating the phrase ‘absolute disruption’ …
“The Committee raised a number of concerns … including the potentially unclear nature of the definitions used in some of the proposed changes and the lack of a robust consultation exercise as it should have extended to the public … Moreover, the Explanatory Memorandum (EM) … to mention that the same changes were previously rejected by the House of Lords in February when put forward as amendments during the passage of the Public Order Act 2023. The Committee concluded that the EM supporting the Regulations should have acknowledged and addressed the significant concerns expressed about the policy when it was debated in the House.”
Government seeks to undermine the will of parliament
Now let’s park to one side the argument about the democratic right to protest (although the Equality and Human Rights Commission has very strong things to say about that). And set aside the way in which everyone from suffragettes to anti-fracking protesters to Sheffield tree protesters have used non-violent direct action to eventually win arguments against intransigent – wrong – authorities.
Let’s just look at parliamentary process.
Parliament voted down a law. Now the Executive is bringing in the same law by fiat, by dictat, overruling the so-called ‘sovereign’ parliament. This is unprecedented – there is no ‘convention’ because no government has ever tried it before. But it surely goes against every principle of parliamentary democracy, and should not be allowed.
Support the fatal motion to safeguard democracy
But parliament can use its own processes to stop this. The House of Lords can. (We can – sadly – put aside the House of Commons, where the Conservatives were given, back in 2019, 100% of the power with 44% of the vote under Boris Johnson, three PMs back, where the vote will go along party lines.)
The crunch point – decision point for members of the House of Lords – is on Tuesday night. The regulation will be put to the vote, with two amendments. One, from the Labour Party, will ‘regret’ the regulation. Which means just like it sounds. The House will say ‘this is bad’, then not use its power to stop it. Actual impact on the law is zero.
The ‘fatal motion’ from Green Jenny Jones would stop it. Prevent it happening. Uphold the previous vote of the House and prevent the Executive overruling it.
The Liberal Democrats – credit to them – we understand will be backing the motion en bloc. A significant number of crossbench (non-party) peers have indicated they will back the fatal motion.
But what will the Labour peers do? What we hear is that they plan to ‘whip’ for abstention. To instruct their members of the House to stay in their seats, to let the Executive overrule the parliament. If you think that’s wrong, please sign the petition with those 40,000-plus others and tell them so.
