In a report published on 11 May, the House of Lords Secondary Legislation Scrutiny Committee (“SLSC”) drew attention to a constitutional issue of considerable interest and novelty. The SLSC drew the attention of the House of Lords to draft regulations that, if they come into effect, will allow police in England and Wales to impose restrictions on protests and processions that cause “more than minor” hindrance to day-to-day activities for other people, including going to and fro on the highway (The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023). The changes would also allow the police to take into account the cumulative effect of repeated protests. The changes amend sections 12 and 14 of the Public Order Act 1986 and effectively alter the meaning of the threshold criterion of causing “serious disruption to the life of the community” in respect of processions and assemblies by defining that term in a way that imposes a lower threshold than its ordinary words suggest.

The merit of the policy underlying the proposed changes is highly controversial and bound-up with attitudes to recent climate change protests by Insulate Britain and Just Stop Oil. It is not however the controversial nature of the policy which is of primary concern to the SLSC but the fact that the same amendments to the Public Order Act 1986 had been proposed by the Government in January in the form of amendments to the Public Order Bill—now the Public Order Act 2023—and rejected by the House. The first proposed amendments to the Bill were defeated on division by 254 votes to 240 and a second set of amendments were then not moved.

The Government set about drafting regulations that would reverse the defeat in the House, relying on Henry VIII powers to amend the Public Order Act 1986 conferred by the Police, Crime, Sentencing and Courts Act 2022. These draft regulations were laid before the Public Order Bill had even completed its Parliamentary stages. In this way, the Government sought to obtain through the back door that which it could not obtain through the front. This remarkable act of constitutional chutzpah is underscored by the fact that the explanatory notes which accompany the regulations make no reference to the defeat of the same amendments to the Public Order Act 1986 during the course of the Public Order Bill, or the reasons for the defeat. Indeed, in the section of the explanatory notes that addresses whether there is anything in the regulations of special interest to Parliament, the Government has stated “None.”.

The SLSC disagreed that there was nothing of special interest to Parliament in the draft regulations. It correctly identifies a major constitutional issue raised by the proposed regulations. The report states,

“18. As well  as  not  justifying  the  substance  of  the  provisions,  the  Home  Office has not provided any reasons for bringing the measures back in the form of secondary legislation, which is subject to less scrutiny, so  soon  after  they  were  rejected  in  primary  legislation.  We  are  not  aware of any examples of this approach being taken in the past; the House may wish to verify this with the Minister. We believe this raises possible constitutional issues that the House may wish to consider.”

This is a polite way of drawing attention to an audacious and unprecedented defiance of the will of Parliament.

It may be thought that this is nothing more than a storm in a teacup. After all, Parliament has an opportunity to veto statutory instruments. If it still holds to the same view as it did when it rejected amendments to Bills in the same terms as contained in such instruments, it will do so. That power provides a mechanism for ensuring that the will of Parliament is respected and Parliament’s supremacy assured. This is not however a satisfactory answer to the constitutional concern either in principle or in practice. It is not a satisfactory response in principle because not all statutory instruments require endorsement by each House of Parliament and some require no more than laying before Parliament. There is, in other words, no legal or constitutional rule that delegated legislation, even that made in the exercise of Henry VIII powers, must be endorsed by each House.

The response is also unsatisfactory as a matter of practice and political reality. The draft regulations are indeed subject to affirmative resolution procedure. However, it is more difficult and hazardous for the House of Lords to reject statutory instruments than amendments to Bills. The House of Lords rejects delegated legislation extremely rarely. The last time the House of Lords did so was in 2015, resulting in a mini-constitutional crisis and the government commissioning a review of the powers of the House of Lords. The review referred to an alleged “longstanding convention” that had been broken that “the House of Lords should not, or should not regularly, reject SIs” (p.15). Whilst the Government did not follow-up with reforms to the House, it made clear that the position would be kept under review and that it would be prepared to act if the same thing happened again (see Richard Reid, “The House of Lords’ powers on statutory instruments survive”). This precarious situation means that the Government has additional leverage in introducing the amendments to the Public Order Act 1986 by delegated legislation than it had during the passage of the Public Order Bill. The merits of the policy and the need for the House of Lords to take a consistent position will not be the only considerations in play when Peers come to consider the regulations: there are also wider macro-political considerations. Reflecting this, Labour has merely tabled a motion of regret, which is not fatal to the measure.

The regulations may therefore be more vulnerable in the courts. On first sight, the Government’s tactics may seem to fundamentally contravene the principle of parliamentary sovereignty, which the courts have been busy reinforcing in recent years. However, as a matter of law, sovereignty is only expressed in the text of Acts of Parliament. That means that where Parliament has rejected amendments to Bills, which is not recorded on the face of the Act itself, it is not necessarily inconsistent with the resulting Act for the Government to achieve the same result by other means.

The draft regulations are not therefore capable of being challenged as contrary to the express terms of the Public Order Act 2023. But might it still be argued that they are contrary to the policy and purpose of the 2023 Act and therefore an abuse of power? Executive powers generally cannot be exercised in ways that frustrate or run counter to the policy or purposes of Acts of Parliament (e.g. Miller I at [51]). In this respect, it is relevant to observe that the Public Order Act 2023 does include a threshold of “more than minor” hindrance but only for new offences of “locking on” and “tunnelling”. Moreover, the 2023 Act does also make amendments to the sections of the Public Order Act 1986 concerned with processions and assemblies (see ss.15 and 16) whilst not extending the “more than minor’ threshold to those provisions. The legislative scheme – as reflected in the Public Order Act 1986 and Public Order Act 2023 – therefore reflects a deliberate choice that, as the SLSC put it, “different situations merit different thresholds” (at [17]). The draft regulations change that deliberate and considered legislative scheme. Nonetheless, the underdeveloped jurisprudence on the operation and limits of Henry VIII powers provides thin gruel for an argument along these lines, despite the undeniable political reality that the draft regulations would reverse the policy agreed by Parliament in the 2023 Act.

Another aspect of the draft regulations that calls for comment relates to the inadequacy of the consultation process adopted. The SLSC report identifies that the proposed regulations advance “a controversial policy with a wide range of interested parties and strongly felt views”. However, the explanatory memorandum states that the consultees were limited to the National Police Chiefs Council, the Police and Crime Commissioners of the police forces whose areas include the M25, and National Highways. No bodies providing a contrary perspective, or persons or organizations whose protest rights would be affected by the regulations, were consulted. The SLSC pointed out that the Government’s own consultation principles require it to consult a wide range of affected persons and it concluded the consultation conducted was “not adequate”. One can imagine the members of the committee choking on their coffee at the Government’s suggestion that such a wider consultation was unnecessary because there had been a debate in Parliament—Peers explained that this was “not a substitute” for hearing from persons whose rights would be affected and in any event, the SLSC wryly observed, the Parliamentary process had resulted in a rejection of the measures, “yet they have been brought back unchanged” (at [23]).

The law on this point is reasonably clear. Where a public authority chooses to conduct a consultation process, that consultation must be conducted properly and fairly (e.g. MP at [29]). This includes that the consultation is not one-sided and that affected persons are included. In R (Article 39) v Secretary of State for Education the Court of Appeal found that a consultation conducted prior to the making of Covid-19 regulations had been unlawful because it had been “conducted… on an entirely one-sided basis” and had “excluded those most directly affected by the changes” (at [83]). The court reached these findings despite the serious difficulties presented by the Covid-19 pandemic. It is surprising in light of such authorities that the Government took such a lopsided and narrow approach to its consultation on the draft regulations.

Conclusion

The case of the draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 appears to be a unique example of Henry VIII powers being used to amend primary legislation in circumstances where the same amendments have been rejected by Parliament during the passage of a recent Act. It represents another example of the difficulties presented by the proliferation of Henry VIII powers and the challenges that this poses to the orthodox understanding of the ordering of our constitution, with Parliament as the apex body to which the Government is subservient. A prominent strain of our constitutional law has been the restriction of prerogative powers and preventing them being used to contravene or side-line the will of Parliament (e.g Case of Proclamations, De Keyser’s Royal Hotel Ltd, The Fire Brigades Union case). The present situation throws up the same issue in a modern form, with the Government seeking to invoke broad executive powers to circumvent the need to obtain an Act of Parliament to achieve its policy goals. Of course, such broad executive powers were, unlike prerogative powers, themselves conferred by Parliament; but where Parliament subsequently decides that amendments to primary legislation should not be made, the use of previously delegated powers to achieve that result is a matter of concern.

Tom Hickman KC is a barrister and Professor of Public Law at UCL

Gabriel Tan is author of the Administrative Court Blog @finishedloading

(Suggested citation: T. Hickman and G. Tan, ‘Reversing Parliamentary Defeat by Delegated Legislation: The Case of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023’, U.K. Const. L. Blog (22nd May 2023) (available at https://ukconstitutionallaw.org/))