In 1961 Alexander Bickel argued that the US Supreme Court should adopt what he called the ‘passive virtues’ – minimising engagement with hard constitutional questions so as to keep its powder dry for the most essential issues. One such question that appears headed for the UK courts is the Home Secretary’s decision to use delegated powers in the Police, Crime, Sentencing and Courts Act 2022 (‘the 2022 Act’) to introduce the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (‘the Regulations’) conferring additional powers on the police to impose restrictions on protests and processions. Notwithstanding existing concerns around the use of delegated legislation to introduce substantive and controversial policy, the unusual and serious constitutional issue here is that the Regulations make changes to the law specifically rejected by Parliament during debates on the Public Order Act 2023 (‘the 2023 Act’). Either the House of Commons or the House of Lords could (in theory – in practice this is rare indeed) have refused to approve the Regulations, but neither has done so. Liberty has now sent a pre-action letter to the Home Office in anticipation of the Home Secretary’s formal making of the Regulations. Tom Hickman KC and Gabriel Tan have already set out an excellent analysis in this blog of the constitutional and (potential) legal problems with the Regulations. In this post I take a wider lens, reflecting on the role of the courts (and the Supreme Court in particular) in the face of constitutional abuse.    Recent times have seen significant constitutional abuse – undermining what Peter Hennessey calls the ‘good chaps’ theory of government, whereby considerable power is exercised with appropriate regard for constitutional norms and values which, while legally unenforceable, are nonetheless vital in a credible liberal democracy. Examples of recent constitutional abuse are myriad, but these include: avoidance of proper democratic deliberation and oversight by side-lining Parliament (or trying and failing to do so); an unusual willingness by ministers to disregard the rule of law; a lack of respect for Parliament’s members; a lack of respect of the devolution settlement and the Belfast/Good Friday agreement; a (putting it mildly) strained relationship with the truth; and, in this case, increasing use of delegated powers to avoid scrutiny.

In their book How Democracies Die, Steven Levitsky and Daniel Ziblatt argue that democracies slide into autocracy or tyranny, not generally via a cataclysmic moment (e.g. a coup d’état), but by the gradual erosion of political norms and institutions. They identify four indications of this: (1) rejection of democratic rules; (2) denial of the legitimacy of political opponents; (3) toleration or encouragement of violence; and (4) curtailment of opponents’ civil liberties. Levitsky and Ziblatt argue that healthy democracies require ‘mutual toleration’ and ‘institutional forbearance’. There is not the space here to do justice to their work, but one key insight is that constitutional actors must work together to resist undermining of democratic norms without, critically, themselves abusing or undermining the norms and processes in question. To resist abuse abusively leads only to polarisation and further decay. 

Judicial Responses to Democratic Abuse: The Passive Virtues

These points aid sober reflection on the best response to the Home Secretary’s apparent undermining of Parliament’s will here, particularly as resistance appears set to move into the courts. Judicial review of statutory instruments is an entirely regular feature in the UK constitution. Secondary legislation must be within scope of the powers under which it is made and meet the standards of good administration inherent in the grounds of judicial review. As Hickman and Tan point out (and Liberty in its pre-action letter), it is arguable that the Regulations undermine Parliament’s policy and purposes as set out in primary legislation, and that the Government’s consultation process was procedurally flawed. Yet, review of these Regulations will be high-profile, and the legal errors are by no means clear cut. Arguments around statutory purpose are controversial at the best of times (see e.g. the comments of Lord Reed and Lord Thomas at para [65] of the Agricultural Sector (Wales) Bill Reference), and the waters are muddier still where amendments have been made using Henry VIII powers. The Government’s consultation on the proposed changes was notably limited, but consultation challenges too can be unpredictable. It would, moreover, be novel indeed to afford legal weight to the question of the rejected amendment itself. Given the uncertainty of the legal position – and that the key issue stimulating negative response (over and above other SIs of debateable legality) is the purported abuse of constitutional procedure – the rest of this post adopts a wider constitutional focus, considering the strategic attitude of the courts and the extent to which the Home Secretary’s approach is better addressed by political means. In short, the question is whether extension of the legal envelope would simply lead to increased polarisation rather than work to prevent democratic decay.

It is leaping ahead several steps, given no judicial review claim has (yet) been issued, to think about the Supreme Court here. But this is an important legal point with significant public interest and constitutional import. The Supreme Court, under Lord Reed’s leadership, appears to have taken a deferential turn in constitutional cases. While the Court had previously been prepared, for example, to develop doctrine to prevent Prime Minister Johnson’s attempted prorogation of Parliament during a crucial stage of Brexit negotiations (for critical comment see here), it has more recently appeared to defang existing doctrine in a way which reduces legal constraints on government. It has rowed back on the extent to which international agreements can be taken into account when construing domestic legislation. It has limited the power of the courts to develop human rights law beyond the decided cases of the European Court of Human Rights. It has shown significant deference to the executive in the field of climate change. The Court has been criticised for this – Conor Gearty, for example, published a notably critical piece (given some of the following argument, I’d note that I have also commented on the Court’s at times overly obeisant attitude in challenges involving social policy).

There are a number of possible explanations for this turn in the Court’s jurisprudence. Changes in personnel provide one theory, as does the idea of a Court cowed in response to government accusations of judicial activism. Yet this approach might also be seen – on a tactical level (and it is naïve to assume that such considerations do not inform apex courts in all jurisdictions, to some extent) – to reflect Bickel’s passive virtues. At a moment where the government has argued that abuses of the judicial review process necessitate reform, and attempts have been made (nearly, not quite) to revoke and replace the Human Rights Act, the Supreme Court’s approach has taken the heat out of the Government’s arguments. On one view, this simply means that the executive is free to act without constraint; on another, the Court might be seen in areas where doctrine is not clearly settled to be leaving more issues for settlement by political processes. By – and this is a tenet of political constitutionalism – avoiding the urge to place matters beyond the scope of political debate the Court both upholds the normative claims of democratic processes and takes the issue of judicial overreach off the table as a political hot potato. 

Judicial Review of the Regulations: Supporting the Political Constitution

Of what relevance is all this for the Regulations? As noted as the outset, the use, overuse and abuse of delegated legislation is an issue of constitutional concern which may or may not end in reform. Judicial intervention in this case would – based as it would be in the proper development and application of doctrine – inevitably participate in that reform process. Without further engagement with the technical points ably set out by Hickman and Tan and focusing on the broader constitutional issues, a reasonable approach by the courts might be to say that this is primarily a matter for deliberation by political actors. Both the House of Commons and House of Lords declined to take the nuclear option (not taken by the Commons since 1978, and rare but not unheard of in the Lords – the last time was in 2015) of refusing approval of the Regulations, despite awareness of the constitutional problems here. Moreover, if Parliament: (1) rejects a legal change in primary legislation, but (2) nonetheless affords government wide statutory powers (and subsequently declines to prevent the use of (2) to achieve (1)), then it is perhaps unfair to ask the courts to step in and subject themselves to the heat avoided by Lord Reed and the current Supreme Court. Arguably, then, this is case wherein the separation of powers considerations recommend leaving the matter for Parliament to resolve; if, in short, members are going to continue to pass broad enabling powers then it is not for the courts to clean up that mess when those powers are abused. As Levitsky and Ziblatt might have it, the response to constitutional abuse is not to up the ante in the face of legal uncertainty, leading to increased polarisation (the inevitable calls, for example, for reform of judicial review in the face of – as the Home Secretary might put it – unwarranted judicial obstruction).

And yet, even from (or, perhaps, in particular from) a political constitutionalist perspective, the deliberative/democratic paradigm at the core of this concept relies on government and Parliament engaging in good faith debate and discussion in the interests of the common good. Whatever one thinks of the extent of delegated legislation in the UK context – and it is beyond argument that there is a lot – using statutory powers to achieve that which Parliament has recently and specifically rejected constitutes an egregious constitutional abuse. From this perspective, the refusal of the House of Lords to reject the Regulations, which undermines the democratic principles from which legislation draws its normative force, demonstrates a problematic reticence carry out constitutional oversight. This is not, accordingly, a case where judicial intervention would place judicial principle ahead of the policies agreed to after careful deliberation and scrutiny by the constitution’s political actors. Rather, it is a case where a finding of illegality would preserve the interests and integrity of the UK’s political constitution (see Rosalind Dixon’s excellent recent monograph on representation enforcing judicial review for discussion of the idea). It might, and I say this with caution, be a rare case wherein passivity is not a virtue. 

Many thanks to Paul Scott and Se-shauna Wheatle for comments on a previous version of this piece.

Dr Tim Sayer is a lecturer at Oxford Brookes University.

(Suggested citation: T. Sayer, ‘The Passive Virtues and the Abuse of Delegated Legislation: Courts, the Political Constitution and the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023’, U.K. Const. L. Blog (19th June 2023) (available at https://ukconstitutionallaw.org/))