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Lords Committee questions Government bringing forward public order proposals previously rejected by the House of Lords

Thursday 11 May 2023

This week in its 38th report the cross-party House of Lords Secondary Legislation Scrutiny Committee considered the Draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (the Regulations) and probed the process used by the Government to introduce the Regulations, in addition to highlighting other concerns.

The Regulations are intended to assist the policing of protests, such as those carried out by Extinction Rebellion and Just Stop Oil. They would introduce changes to the Public Order Act 1986 which would allow the police to intervene in a wider range of circumstances, including by reducing the threshold for “serious” disruption. Other changes include allowing the police to consider the cumulative impact of repeated protests in the same area and incorporating the phrase “absolute disruption” to take account of whether there is disruption in an area regardless of the protest.

The Committee raised a number of concerns with the Home Office including the potentially unclear nature of the definitions used in some of the proposed changes and the lack of a robust consultation exercise as it should have extended to the public who might be affected. Moreover, the Explanatory Memorandum (EM), which should provide information on the policy, failed to mention that the same changes were previously rejected by the House of Lords in February when put forward as amendments during the passage of the Public Order Act 2023. The Committee concluded that the EM supporting the Regulations should have acknowledged and addressed the significant concerns expressed about the policy when it was debated in the House.

The Committee also expressed its concerns around the process of reintroducing measures as secondary legislation that had recently been defeated during the passage of primary legislation, without offering good reasons, noting that secondary legislation is subject to less parliamentary scrutiny than primary legislation.

The Committee has drawn the Regulations to the special attention of the House on the grounds that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
Lord Thomas of Cwmgiedd, Member of the Secondary Legislation Scrutiny Committee said:

“There are several issues with the proposals set out in these Regulations, which raised concerns in the Committee. The changes to the law proposed by the Regulations were rejected by this House when they were debated during the passage of the Public Order Act 2023 just a few months ago. As far as we can ascertain, this is the first time a Government has sought to make changes to the law by making those changes through secondary legislation even though those same changes had been rejected by Parliament when introduced a short while before in primary legislation. This raises a constitutional issue as to the appropriate use by Government of secondary legislation, particularly as it arises in the context of an area of law which is important and attracts controversy.

"As the policy would affect a wide range of people and might attract strongly felt views both for and against, a full public consultation, before bringing forward the proposals, would have been appropriate to maximise the chances of a clear and operationally effective outcome. A wider consultation conducted in line with the Government’s own Consultation Principles would have helped in providing clearer definitions within the Regulations.
“The Home Office has stated that the Regulations are intended to achieve consistency across the statute books and case law. This is often a desirable aim, but it only applies to some of the changes in the Regulations. Moreover, this argument was considered by the House when it previously rejected the policies.

“We have suggested that the House may wish to consider these issues more fully.”

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