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

Viscount Hailsham Excerpts

Tuesday 13th June 2023 Lords Chamber

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.

--- Later in debate ---

[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.