Dear Sir Conor,
The topic of my letter to you today is constitutional overreach by the government. I have long been concerned by recent governments’ excessive use of Henry VIII powers and statutory instruments (S.I.), allowing ministers to make rules that govern us all without proper democratic scrutiny by our elected representatives.
Imagine my horror when I participated in a webinar by the Hansard Society last week and learned that prime minister Rishi Sunak will today have MPs vote on allowing the government to introduce a measure by S.I. that it failed to get through parliament a few short months ago.
The specific proposal is to lower the definition of what constitutes “serious disruption”. Sunak, or rather Suella Braverman, whose brainchild this move is likely to be, will justify this as giving the police greater powers to deal with Just Stop Oil. I am concerned that the entirety of the British population is having its rights even further curtailed and government is marching headlong towards dictatorship simply to deal with one protest group. This government has already introduced alarmingly Putinesque powers against protest in general to the statute books and greatly curtailed the public’s right to protest in ways that are, frankly, anti-democratic and unBritish.
Damage to our democracy and our constitution by far outweigh Braverman’s wish to crush Just Stop Oil, and I am disappointed that Sunak is not cognizant and respectful of that. The use of an S.I. for the purpose outlined above raises all sorts of constitutional issues. First of all, an S.I. is an expression of the will of the Executive (government) rather than the Legislature (parliament). Sure, some are occasionally laid before parliament and debated for 90 minutes, but not always, and crucially they are not amendable.
By convention, an S.I. should only be used to implement policy, not to make or change policy. Lowering the threshold at which behaviour is considered “criminal” is obviously a change not an implementation of policy. What is particularly egregious in this instance is that the proposed S.I. implements a measure that parliament has already expressly rejected just a few months ago. According to Erskine May, a question should not be put to parliament more than once in the same session, so Sunak is abusing parliamentary process by introducing this S.I.
The S.I. itself is being introduced under a (too) wide power granted in the Police, Crime, Sentencing and Courts Act 2022. However, since that Act came into being, the Public Order Act 2023 passed. Our constitution is built on the principle of the supremacy of parliament. That means the 2023 Act represents the most recent expression of parliament’s will, and it expressly rejected this measure in debating and shaping that Act. Using a previous Act to amend a subsequent Act does not respect parliamentary supremacy. Is this government only going to respect the principles of our constitution when it is convenient to its agenda, but not otherwise?
I further object because:
- The government has not stated that this measure was rejected by parliament in the explanatory memorandum to the S.I. — there’s a footnote buried in the economic notes (not good enough);
- There has been a lackadaisical, one-sided approach to consultation, with none of the stakeholders impacted by this change in policy consulted — the government is trying to pretend that the previous parliamentary debate was a “consultation” (it wasn’t, and in any case the measure was rejected as a result of that debate);
- The government is not introducing any new evidence or arguments, and
- The impact assessment, such as it is, was laid at the same time as the S.I., which disrespects MPs and us, your constituents, by not allowing for proper scrutiny.
We cannot leave it to the House of Lords to save us from Sunak and Braverman driving a coach and horses through our constitution this time, because there is a convention that the House of Lords does not reject an S.I. If they were to do so, even though there is an enormous constitutional principle at stake and the Lords would only be doing their job in defending and protecting our constitution, it is likely Sunak and Braverman would be spiteful enough to trigger the Strathclyde Sanction and neuter the House of Lords – and that would be even worse for our democracy. For this reason, although more than 40,000 people have signed the petition for the Lords to back Baroness Jones of Moulsecoomb’s “fatal motion” (which would kill this S.I.), many peers may hesitate to do so. British democracy is therefore caught between a rock and a hard place.
I am sick and tired of things not being done properly, of the government taking short-cuts, or not doing the work at all necessary to create “good” law, and above all of the disrespect it shows to our constitution and our rights. I realise it is a big decision for an MP to disobey the whip, but this is one of those moments in life when it is important to go against the tide and stand up to be counted. It is unprecedented for the government to overturn a parliamentary vote using a ministerial decree. I urge you to support our democracy and vote against this pernicious measure.