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

Lord Rooker Excerpts

Tuesday 13th June 2023 Lords Chamber

[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?