Thread by @HansardSociety

🧵The @UKHouseofLords will debate an important constitutional question later today (13/6). Should the Government be able to bring back a policy proposal via a Statutory Instrument (SI) that it could not get through Parliament in primary legislation earlier in the same Session? 1/

https://twitter.com/HansardSociety/status/1668524761377275905

The SI concerns changes to the threshold for #seriousdisruption for the policing of certain types of protest. The proposals were first introduced in Jan as a late amendment to the Public Order Bill at report stage in the Lords and after the Bill had been though the Commons. 2/

Peers rejected the amendment by 254 votes to 240. But a few days before the Public Order Bill had even received Royal Assent the Government reintroduced the proposals in the form of a Statutory Instrument (SI). 3/

A Statutory Instrument is delegated legislation which cannot be amended by MPs or Peers, and which is very rarely rejected by either House. 4/

A 'fatal' motion has been tabled by @GreenJennyJones asking Peers to reject the SI. This is the nuclear option and would also pose a constitutional problem. So Labour has tabled its own 'regret' motion. It expresses concern about the Govt’s approach but would not stop the SI. 5/

The @HouseofCommons debated & approved the SI y'day. If the regulations are now approved by the Lords, as seems likely, it will set a precedent. The Home Secretary did not engage yesterday with the constitutional qn so the Minister in the Lords needs to be pressed on it. 6/

What assurances will the Minister give that the Govt won’t take this approach again? If an SI can be used by Ministers to reverse a decision in the Lords to revise primary legislation, then what is the point of the scrutiny process? 7/

Both Houses have a rule against putting the “same question” in the same session if the House has already decided on it. The substance of the question not the form is what matters. So, the distinction between the question being put in a Bill or an SI is not critical. 8/

The “same question” rule didn’t apply in the Commons because MPs did not consider the relevant amendment in the Public Order Bill after Peers rejected it in January. But does the “same question” rule not apply in the Lords? 9/

If the answer is no, because the Commons voted on the SI before the Lords yesterday, thereby changing the context to the question, then this opens up a route to future abuse of this procedural safeguard in the Upper House by this or any future Government. 10/

There are also important questions to be asked about the vulnerability of the regulations to legal challenge. In our @HansardSociety event last Friday, @TomRHickman identified 3 possiblities. 👇[watch the last 5 mins] 11/ hansardsociety.org.uk/events/webinar…

First, on grounds of failure to consult relevant, affected groups about the changes. The @UKHouseofLords Secondary Legislation Scrutiny Committee was particularly critical of this failure (see paras 11 onwards) 12/ publications.parliament.uk/pa/ld5803/ldse…

Second, on the possible grounds that the delegated power used to make the SI isn’t sufficiently ample to make these particular changes to the Public Order Act 1986. And third... 13/

... on the grounds that the SI 'frustrates' the policy and purpose of the Public Order Act 2023 which Parliament chose to leave untouched in relation to serious disruption by protests in the form of processions and assemblies. But which this SI would now change. 14/

Whatever your views about the policing of protests, the Government's intentions, or the legitimacy of the Upper House, there is a wider constitutional question at stake. 15/

If a Govt can circumvent the legislative scrutiny process for Bills by using SIs in the words of @TomRHickman & @finishedloading to "obtain through the back door that which it could not obtain through the front" then what's the point of the legislative scrutiny process? [END]