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On 13 June 2023, the House of Lords is due to debate the draft Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023.
The government has introduced the regulations in the context of climate change protests by groups such as Extinction Rebellion, Just Stop Oil and Insulate Britain. The regulations are controversial because they would amend sections of the Public Order Act 1986 (the 1986 act) which give the police powers to impose conditions on people engaging in processions and assemblies that cause “serious disruption to the life of the community”. The regulations would lower the threshold for what kind of activity is considered “serious disruption”. The government previously attempted to make the same changes by primary legislation during report stage of the Public Order Bill (now the Public Order Act 2023) in the House of Lords. At that time, the House rejected the relevant amendment by 254 votes to 240.
The regulations are subject to the draft affirmative procedure, meaning they need to be approved by both Houses before they can become law. Two motions have been tabled to the government motion to approve the regulations in the House of Lords. They would differ in effect if approved:
- Lord Coaker, a Labour spokesperson on Home Office issues in the House of Lords, has tabled a non-fatal ‘regret motion’. If agreed, this would allow the House to put concerns about the regulations on the record while still approving them. The motion invites the House to regret that the regulations “propose as secondary legislation, which is subject to reduced scrutiny, measures that were recently rejected in primary legislation” and that the government has “not addressed the concerns raised in the House when the measures were in primary legislation or undertaken a full public consultation on these controversial measures”. The motion also calls on the government to withdraw the regulations.
- Baroness Jones of Moulsecoomb, a Green Party member, has tabled a fatal motion that invites the House to decline to approve the regulations “because Parliament has already rejected during consideration of primary legislation the proposals contained within those regulations”. If agreed, the motion would mean the regulations could not become law.
The House of Commons is due to debate a government motion to approve the regulations on 12 June 2023.
1. What would the regulations do?
The regulations are intended to assist the policing of protests by providing clarity around when the police can intervene to prevent “serious disruption to the life of a community”. The instrument would reduce the threshold for “serious” disruption from “significant” and “prolonged” to “more than minor” and would make other changes, for example referring to the cumulative impact of repeated protests.
It would do this by amending sections 12 and 14 of the Public Order Act 1986, which provide for the circumstances in which the police can use powers to place conditions on public processions and assemblies. The relevant sections were inserted into the Public Order Act 1986 by the Police, Crime, Sentencing and Courts Act 2022 (the 2022 act). Sections 12 and 14 of the Public Order Act 1986 grant the police powers if the procession or assembly causes “serious public disorder, serious damage to property or serious disruption to the life of the community”. Serious disruption is defined as either “significant delay” to the supply of a time-sensitive product to consumers, or “prolonged disruption” to access to essential services, including money, food, water, fuel, transport facilities, among others.
The current regulations would amend those thresholds to prevention or delay that was “more than minor”. It would also add an additional provision to define serious disruption as:
Prevention of, or a hindrance that is more than minor to, the carrying out of day-to-day activities (including in particular the making of a journey).
The regulations would also allow the police to take into account “any relevant cumulative disruption” of processions and assemblies in the same area but at different times.
Among other provisions, the regulations would also define “community” as any group of persons affected by the procession or assembly, not only those who live or work in the vicinity.
The Home Office has produced an explanatory memorandum (EM) to the regulations which sets out the full scope of what, in the government’s view, the regulations would do and its rationale for why the changes are needed. The EM states:
In 2022, protest groups Insulate Britain and Just Stop Oil caused widespread disruption across the nation through traffic obstruction and slow marches on roads. The groups repeatedly obstructed roads for limited periods of time, causing widespread disruption over the course of several months. The police were clear that their powers to impose conditions on such protests were limited. The provisions in the 1986 act, as amended by the 2022 act, provide only limited examples of the meaning of “serious disruption to the life of the community”, which police stakeholders have indicated to the government has led to a lack of clarity as to the circumstances in which conditions can be imposed on public processions and assemblies, in particular in relation to the point at which the police could assess that a procession or assembly may result in serious disruption.
The Home Office has also published an economic note on the regulations examining their costs and purported benefits.
2. What parliamentary scrutiny have the regulations received?
The regulations were considered by the House of Lords Secondary Legislation Scrutiny Committee (SLSC) on 9 May 2023. In a report published two days later, the SLSC drew 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”. It said (emphasis in original):
These draft regulations are intended to assist the policing of protests by providing clarity around when the police can intervene to prevent “serious disruption to the life of a community”. The instrument would lower the threshold for “serious” disruption and would make other changes, for example referring to the cumulative impact of repeated protests. The same changes were rejected by the House of Lords when put forward as amendments during the passage of the Public Order Bill (which, when enacted, became the Public Order Act 2023), and the Home Office has not provided any new arguments as to why they should now be approved. The House may wish to consider both the possible constitutional issues that arise and whether it retains its earlier view on the measures.
The committee also criticised the government for not referring to the measures’ previous defeats in the explanatory memorandum, and for how the consultation on the regulations was carried out:
We also have concerns that the explanatory memorandum (EM) does not mention the defeat during the debates on the bill. The EM should acknowledge and address significant concerns expressed about the policy. Finally, there were weaknesses in the consultation process, which was confined to groups likely to support the measures. Given the profile of the issue and the wide range of interested parties, the Home Office should, according to the government’s own consultation principles, have consulted more widely before bringing forward the proposals.
The committee provided the following list of what the regulations would do and its concerns in each case. It said:
- Providing that serious disruption can include the cumulative impact of concurrent and repeated protests in the same area.
- Referring to absolute disruption: that is, whether or not there may be disruption in an area regardless of the procession or assembly. We found this concept unclear; the Home Office told us that it is to “avoid the circumstances where deliberately disruptive acts are justified by the fact that certain forms of disruption [such as traffic jams] may occur regularly in an area when there are no protests”.
- Stating that the definition of “community” can include persons affected by the protest and not just those who live or work in the vicinity of that procession or assembly.
- Amending the list of examples provided by the 2022 act to include where a protest may result in “the prevention of, or a hinderance that is more than minor to, the carrying out of day-to-day activities (including in particular the making of a journey)”.
- Lowering the threshold for serious disruption from “significant” and “prolonged” to “more than minor”. There is no further definition of “minor”, which again leads to some lack of clarity and uncertainty, although the EM states that the phrasing “aligns with” recent protest case law.
The regulations were considered by the Joint Committee on Statutory Instruments on 10 May 2023. The committee did not draw them to the attention of either House.
3. ‘Fatal’ motions on delegated legislation in the House of Lords
It is rare for the House of Lords not to pass secondary (or delegated) legislation. If the House of Lords agrees to Baroness Jones’s motion not to approve the regulations, it would be the first time the House has not passed delegated legislation since 2015. On that occasion, David Cameron’s government was defeated after the House voted to support two amendments to an approval motion, both of which sought to delay consideration of the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015 until certain conditions were met. The regulations sought to implement changes to the income thresholds of working tax credits and child tax credits.
Since 1997, fatal motions on delegated legislation have only been successful on five occasions in the House of Lords (if the 2015 tax credits case is included as ‘fatal’, rather than a delaying motion). Further information on the details of the five occasions can be found in sections 2.2 and 2.4 of the House of Lords Library briefing ‘Delegated legislation in the House of Lords since 1997’ (5 January 2016).
4. External commentary on the regulations
Barrister and Professor of Public Law Tom Hickman has criticised the regulations on the UK Constitutional Law Association blog. He said the regulations were an “audacious and unprecedented defiance of the will of Parliament”. In laying the instrument, he said the government had:
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.
The human rights advocacy group Liberty has criticised the regulations and urged parliamentarians not to approve them. Its briefing on the instrument stated:
These regulations are remarkable in three senses. First, in their unprecedented sidelining of parliamentary scrutiny, with the Secondary Legislation Scrutiny Committee reporting that this is the first time a government has sought to make changes to the law through secondary legislation that have already been rejected when introduced in primary legislation. Second, in its use of a power that has been criticised by a former home secretary, cross-party parliamentarians, and multiple parliamentary committees as creating license for executive overreach. And finally, in its attempt to redefine ‘serious disruption’ from ‘significant’ and ‘prolonged’ to ‘more than minor’—effectively an attempt to divorce words from their ordinary meaning in ways that will have significant implications for our civil liberties.
Amnesty International has said it has “very serious concerns” about the regulations. Its briefing stated:
The regulations lower the threshold for police interference with the right to protest to an extremely low level, to the point where in practice they empower police to pick and choose which protests are and aren’t allowed to continue […] While we understand and respect the general reluctance of the House of Lords to vote down secondary legislation, in these highly unusual circumstances Amnesty International strongly urges peers to support the fatal motion rejecting these regulations.
However, the barrister Adam King, writing on the UnHerd website, has defended the regulations. He argued there was an “unspoken agreement” that protestors should act with proportion and the police should show restraint. He claimed the regulations were necessary because “by causing never-ending disruption out of all proportion to the numbers of protesters […] Just Stop Oil has not held its side of that bargain”.
5. Read more
- House of Lords Secondary Legislation Scrutiny Committee, ‘38th report of session 2022–23’, 11 May 2023, HL Paper 189 of session 2022–23, pp 4–7 and 32–4