Public Order – Undemocratic Power Games by the Government

In the heart of British democracy, a storm is brewing. The Executive, tasked with implementing laws and governing the nation, appears to be in a tussle with the Legislature, the body responsible for creating those laws. The source of the conflict? A set of proposed regulations that, according to critics, defy the decisions of Parliament and risk upsetting the delicate equilibrium of powers that forms the foundation of our democratic system. Benjamin Knight provides an update on the previous article in this series.
The Separation of Powers and the Decisions of Parliament Benjamin Knight on Public Order Regulations and parliamentary procedure

To comprehend the controversy, we must first understand two core principles of our democracy: the Separation of Powers and the decisions of Parliament.

The separation of powers is a principle that divides the institutions of government into three distinct branches: the Legislature (Parliament), the Executive (the Government), and the Judiciary (the Courts). Each branch has separate and independent powers and areas of responsibility, ensuring that the powers of one branch do not conflict with those of the other branches. This balance prevents power from being concentrated in one branch and allows each branch to keep the others in check.

The decisions of Parliament, on the other hand, refer to the decisions made by Parliament through the enactment of legislation. It is a fundamental principle of our democracy that the Executive must respect and implement these decisions. When the Executive acts in a way that contradicts the decisions of Parliament, it raises serious questions about democratic accountability and the rule of law. When the Judiciary finds against the government of the day, it is acting as a safety-net where Parliament has made an error. Judges rarely criticise Parliament but sometimes criticise the Executive (but only through decisions they are called to make on the actions of the Executive). Parliament criticises the Judiciary for what they sometimes deem pedantry – though this is often performative and done in the knowledge that Parliament has failed to legislate according to whatever the hot issue in the press is on any given day. The Executive, particularly of late, criticises both Parliament and the Judiciary. One is “standing in the way of the ‘will of the People’ and the other are, if you remember, “Enemies of the People”.

Despite the rather disgusting turn that the Executive has taken over the past decade, the Separation of Powers clearly still exists and the House of Lords, with all of its faults, has been doing a good job of vetting legislation placed before it by the House of Commons.

The Proposed Regulations and the Public Order Act 2023

The recent controversy revolves around proposed regulations put forward by the Executive. These regulations aim to define terms related to public order offences, such as “disruption” and “serious disruption” by amending the Public Order Act 1986. Yes, you read that correctly. The issue? Parliament had recently enacted the Public Order Act 2023, which expressly rejected a new and very broad definition of these terms. By proposing regulations that effectively reintroduce these broad definitions, the Executive is acting against the decisions of Parliament, that were recently and very clearly expressed.

The House of Lords and the Power to Reject

The House of Lords, as part of the Legislature, has the power to reject these proposed regulations. This power is rarely used, but it is a crucial tool for upholding the decisions of Parliament and checking the power of the Executive. The Lords can reject the regulations outright (a “fatal” motion), or they can express their concerns without rejecting them (a “non-fatal” motion). The latter allows the Lords to put their concerns on record, while the former stops the regulations from becoming law.

It is the former (a “fatal” motion) that is now being advanced by a Green Party member of the House of Lords. It is, as yet, far from clear whether it will succeed, however.

Contrary to the Policy and Purpose of the 2023 Act

While the proposed regulations are not directly contrary to the express terms of the Public Order Act 2023, they are contrary to the policy and purpose of the 2023 Act, and therefore an abuse of power. The 2023 Act includes a threshold of “more than minor” hindrance for new offences of “locking on” and “tunnelling”, but does not extend this threshold to provisions concerned with processions and assemblies. See our previous article on the 2023 Act itself. The proposed regulations alter this deliberate and considered legislative scheme.

In addition, the proposed regulations contain the problematic notion of “cumulative disruption”, and of “relevant disruption”. That latter term will include “all disruption to the life of the community:

(a) that may result from the assembly, or
 (b) that may occur regardless of whether the assembly is held (including in particular normal traffic congestion);”.

Expressly, within that provision, the word “serious” disappears and is replaced with “any”. Consider what that means for a moment. Police forces – faith in whom is at an all-time low – are given the highest level of power in deciding what they will allow. That power is made by individuals answerable directly to the Home Secretary. That, for now, is the Home Secretary who has been fired for her behaviour, demonstrated ignorance of the law on multiple occasions, dreams of deportation to Rwanda despite not knowing that 12 refugees there were recently murdered for joining a protest against the government there, and has expressed literal contempt for the general public both in writing and in speeches. These controversies are all well-documented and are admitted by her, though none has attracted an apology.

In the hands of this Home Secretary, many feel that the scope for extinguishing the right to free speech and freedom of assembly is unprecedented for a modern democracy.

Concerns Over the Consultation Process

One point of contention surrounding the proposed regulations is the perceived inadequacy of the consultation process that was undertaken. The Government’s own consultation principles require it to consult a wide range of affected persons. However, 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 organisations whose protest rights would be affected by the regulations, were consulted. It seems irrefutable that the consultation was conducted improperly and unfairly, as it did not include those most directly affected by the changes. In the Secondary Legislation Scrutiny Committee’s (SLSC) blistering dismantling of the Executive’s approach to this secondary legislation, a picture is forming and it is not pretty or parliamentary.

The Executive’s Likely Counter-Argument

In the event that the House of Lords rejects the draft regulations, it is probable that the Government will mount heavy-duty spin, framing the House of Lords as an unelected and therefore “undemocratic” part of what the Home Secretary derogatorily refers to as “the Blob”. This term, though ill-defined, is often used to label a collective of individuals or groups perceived as obstructing the Government’s agenda.

The History and Use of “The Blob”

The term “the Blob” has a long history in political discourse. It first gained prominence in the 1980s when the then US Secretary of Education, William J Bennett, used it to describe an alleged group of bureaucrats who were, in his view, misappropriating funds that could be better used in classrooms. If you don’t happen to remember him, he was openly racist in his rhetoric, found the idea of beheading drug dealers to be “morally plausible”, and dismissing as “a thought experiment”against Roe v. Wade his comment that aborting black babies would result in reduced crime. Yes. That guy. 

He was later cited favourably by Michael Gove when he was Education Secretary. And it was Michael “enough of experts” Gove who imported the term “the Blob” to the politics of the UK.

Over time, the term has been adopted by various right-wing politicians to explain their failures or to discredit opposition. In the current political climate, “the Blob” is often used to refer to a nebulous group of Remainers, ‘socialists’, lawyers, Greens, the ‘tofu-eating wokeratti’, traitors, the fictional ‘UK branch of Antifa’, and ‘saboteurs’ who are supposedly preventing the country from reaping the benefits of Brexit and from enacting ‘common-sense’ legislation which are otherwise viewed as Draconian or simply unlawful.

The House of Lords: A Safety Net, Not “The Blob”

Characterising the House of Lords as part of “the Blob” would be very odd. The House of Lords, while unelected, plays a crucial role in the democratic process. It provides a perspective, freer from the pressures of electoral popularity or media influence. It acts as a safety net, diligently upholding the rules and conventions of Parliamentary government, even as the Executive has been repeatedly reprimanded for breaking those same rules and conventions.

House of Lords membership – 2023 –

Moreover, the House of Lords is relatively politically-balanced (relative to the House of Commons) but is just about leaning towards the right of the political spectrum, making it difficult to categorise it as part of “the Blob” as currently defined by the Executive. In reality, the term has been stretched to include any group, committee, professional, journalist, or expert who opposes or questions the Executive’s actions. This is evidenced by the Executive’s recent decision to ban any expert who has expressed negative views about the current Tory government from participating in any Cabinet Office-organised or endorsed event.

Upholding Democratic Principles & a Test of British Democracy

The controversy surrounding the draft regulations is a test of the fundamental principles that underpin our democracy. It is crucial to ensure that these principles are not only respected but also robustly defended. The House of Lords plays a vital role in this process. It is a testament to the strength of our democracy that such a body exists to scrutinise and challenge the Executive, ensuring that the will of Parliament is upheld and that the balance of powers is maintained.

This situation serves as a stark reminder of the delicate balance of powers in a parliamentary democracy. It underscores the importance of vigilance and scrutiny in upholding the will of Parliament and preventing potential abuses of executive power. The controversy surrounding the draft regulations is not just about the specifics of public order offences. The proposals are deserving of scrutiny and are a great concern to criminal and constitutional lawyers, nevertheless. As the debate unfolds, it will be crucial to ensure that the public is not misled into a perverted view of the nature of our democracy and the organs of State. There will be a thoroughly financed attempt to lead the public to think more about glue and placards on a single issue than to look at what is going on in Westminster and what it means for this and future generations.

It would be a brutal irony for the Government that came to power through selling parliamentary sovereignty may well thoroughly undermine that sovereignty for such a meagre prize as letting police chiefs decide what peaceful protests they will and will not allow.

I have said it before: the State does not give up powers it has taken from the people – even when there is a change of government.