Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023

Tuesday 13th June 2023 Lords Chamber

Motion to Approve

19:32

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. 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, Lord Hope, 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

[Lord Coaker]

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”.

[Lord Coaker (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!

[Lord Coaker (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.

19:45

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—

[Viscount Hailsham (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.

[Lord Coaker (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—

[Lord Harris of Haringey (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?

[Lord Coaker (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.

[Lord Hope 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, Lord Coaker, 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, Lord Coaker, 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.

[Baroness Jones of Moulsecoomb (GP)]

I actually told the noble and learned Lord, Lord Hope 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, Lord Coaker, 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.

20:00

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?

[Lord Hunt of Wirral (Con)]

My Lords, I speak in my capacity as chair of the Secondary Legislation Scrutiny Committee. The noble Lord, Lord Coaker, 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, Lord Hope, 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 Lord Hodgson of Astley Abbotts, 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.

[Lord Rooker (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, Lord Strathclyde, 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 Lord Cunningham of Felling.

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.

[Baroness Jones of Moulsecoomb (GP)]

Can the noble Lord tell me how I misled anyone? I think it has been the Labour Party that has misled people.

[Lord Rooker (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.

[Lord Pannick (CB)]

My Lords, I support both amendments before the House—that tabled by the noble Lord, Lord Coaker, 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, Lord Rooker, 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?

20:15

[Lord Reid of Cardowan (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.

[Lord Pannick (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, Lord Coaker, 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?

[Lord Brownlow of Shurlock Row (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.

[Lord Pannick (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.

[Viscount Hailsham (Con)]

My Lords, with little exception, I agree with what the noble Lord, Lord Pannick, 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, Lord Coaker, 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, Lord Pannick. 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, Lord Coaker, I have very real reservations about the process that is being adopted. The process and its defects were identified by my noble friend Lord Hunt of Wirral. 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, Lord Pannick. 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, Lord Coaker. 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 Lord Rooker. 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.

[Lord Paddick (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.

[Viscount Hailsham (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—

[Lord Paddick (LD)]

Will the noble Viscount give way?

[Viscount Hailsham (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, Lord Rooker 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.

[Lord Paddick (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.

[Viscount Hailsham (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.

20:30

[Lord Jackson of Peterborough (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, Lord Coaker, and against the fatal amendment in the name of the noble Baroness, Lady Green.

[Noble Lords]

Lady Jones.

[Lord Jackson of Peterborough (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 Lord Rooker, 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!

[Lord Jackson of Peterborough (Con)]

—as I wind up.

[A noble Lord]

Hear, hear.

[Lord Jackson of Peterborough (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, Lord Hoffman. The noble Lord, Lord Coaker, talked about the importance of conventions. With that in mind, the noble and learned Lord, Lord Hoffman, 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.

[Lord Lisvane (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 Lord Pannick, 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 Lord Pannick 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, Lord Coaker, 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, Lord Judge, 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.

[Lord Pannick (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?

[Lord Lisvane (CB)]

I think the noble Lord will know the answer, and it is no.

[Baroness Stowell of Beeston (Con)]

My Lords, I start by joining the noble Lord, Lord Coaker, 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, Lord Coaker, 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.

20:45

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 Lord Hailsham and the noble Lord, Lord Paddick, 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, Lord Coaker and Lord Pannick, 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.

[Baroness Fox of Buckley (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.

[Lord Hogan-Howe (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, Lord Coaker, which I think is the right thing. I think the arguments made by the noble Lords, Lord Reid and Lord Rooker, 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!

[Baroness Hayman (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.

21:00

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, Lord Rooker and Lord Reid, talking passionately about the supremacy of the House of Commons, and I passionately agree. The noble Lord, Lord Rooker, 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.

[Lord Paddick (LD)]

My Lords, we on these Benches associate ourselves with the remarks of the noble Lord, Lord Coaker, on the tragic events in Nottingham.

Like the noble Lords, Lord Pannick and Lord Lisvane, 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, Lord Hunt of Wirral, 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, Lord Pannick, 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, Lord Pannick, said, scrutiny of secondary legislation is cursory.

On integrity and the Boris Johnson resignation honours row, Michael Gove, 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, Michael Gove 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, Lord Forsyth of Drumlean, 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, Lord Coaker, 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 Lord Rooker: 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.

[Lord Sharpe of Epsom (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, Lord Coaker, 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 Lord Rooker, 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, Lord Hogan-Howe, 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, Lord Lisvane, 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, Lord Coaker, 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.

21:15

[Lord Coaker (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, Lord Hope, 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, Lord Hope 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.

[Baroness Stowell of Beeston (Con)]

The noble Lord, Lord Coaker, 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.

[Lord Coaker (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, Lord Paddick, 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, Lord Paddick, 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.

21:23

Division 4

Ayes: 177

---

Labour: 95
Liberal Democrat: 48
Crossbench: 20
Conservative: 7
Independent: 4
Green Party: 2
Bishops: 1

Noes: 141

---

Conservative: 136
Independent: 2
Democratic Unionist Party: 1
Labour: 1
Crossbench: 1

21:33

Amendment to the Motion

Moved by

[Baroness Jones of Moulsecoomb]

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”.

[Baroness Jones of Moulsecoomb (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.

21:35

Division 5

Ayes: 64

---

Liberal Democrat: 49
Labour: 10
Crossbench: 7
Green Party: 2

Noes: 154

---

Conservative: 143
Crossbench: 5
Independent: 3
Labour: 2
Democratic Unionist Party: 1

See col. 1950 for explanation of mistake in voting figures.

Motion, as amended, agreed.