Sunday, December 05, 2021
Government by diktat
Over at the Financial Times, Camilla Cavendish is writing about the authoritatian mess that is the UK Government's police, crime, sentencing and courts bill, which she describes as a monstrous jumble of laws that wouldn’t look out of place in Soviet Russia — and that was before the government slipped in more clauses by the back door.
Last week, the home secretary, Priti Patel, added 18 pages to the bill that hadn’t been there when MPs voted for it in July. One provision would stop demonstrators blocking major transport routes: a fair response to Insulate Britain’s campaign. But another would expand the police power to stop and search people “without suspicion”. And another would ban named individuals from protesting, if they had previously committed “protest-related offences”. This feels Orwellian. It comes on top of provisions in the original bill that skirt dangerously close to criminalising peaceful protest. The home secretary wants the police to be able to arrest, fine and imprison any demonstrator if their protest is noisy enough to cause “serious unease” to bystanders. Who defines “serious unease”? Lawyers say this is among the vaguest and most imprecise language they have ever seen.
After police in Bristol were accused of being heavy-handed against activists who were demonstrating, with supreme irony, against the bill, an inquiry said they had “failed to understand their legal duties in respect of protest”. They won’t need to worry if the bill goes through, because their legal duty, as I read it, will be pretty much to crack down on whoever the home secretary dislikes. Today’s home secretary seems to hate climate change protesters. Tomorrow’s may hate you, dear reader.
She says that two new reports warn that we are heading into “government by diktat”, because power is drifting away from parliament:
Bills are often drafted only in outline, with the important detail left to secondary legislation which can’t be amended and may become law with little or no consideration by parliament. “Henry VIII powers” let ministers repeal or amend acts with little scrutiny. And now, according to a committee of the House of Lords, Whitehall is using guidance and protocols as a form of “disguised legislation” — with legal effect but no oversight.
These trends precede Covid-19 and Brexit. Back in 2008, for example, the UK’s climate change target was raised from 80 per cent to 100 per cent reduction in greenhouse gases through secondary legislation and after only 90 minutes of debate — which doesn’t seem right for a decision with such serious financial consequences. More recently, the government’s move to force care workers to be vaccinated was the first time in English law that someone’s Covid-19 vaccination status had explicitly affected their eligibility to work. Yet it was rushed through under delegated powers, with only 90 minutes of scrutiny. In 2015, George Osborne’s attempt to cut tax credits using delegated powers was defeated by the Lords — but for only the fifth time in half a century.
Some will ask, why can’t an elected government do what it wants? The answer is that it can, but in the daylight. The bulk of statutory instruments apply to obscure-sounding matters that are shrouded in technical language. Politicians rarely look too deeply: they are just grateful to be told by officials they won’t have to come back to parliament. If pressed, departments use the age-old argument that they won’t use the powers much anyway. When a Home Office minister assured MPs that “the police [will] attach conditions to only a small proportion of protests”, it felt like a scene from the television series Yes Minister.
It is surprising that a Conservative government is churning out huge volumes of legislation that enlarge the power of the state. It is appalling that it is so cavalier about democratic freedoms. But it is truly astonishing that it doesn’t seem to wonder how others might use the powers it is busily creating.
Is Boris Johnson's Government turning the country into an elected dictatorship, Hungary-style? It certainly looks like it.
Last week, the home secretary, Priti Patel, added 18 pages to the bill that hadn’t been there when MPs voted for it in July. One provision would stop demonstrators blocking major transport routes: a fair response to Insulate Britain’s campaign. But another would expand the police power to stop and search people “without suspicion”. And another would ban named individuals from protesting, if they had previously committed “protest-related offences”. This feels Orwellian. It comes on top of provisions in the original bill that skirt dangerously close to criminalising peaceful protest. The home secretary wants the police to be able to arrest, fine and imprison any demonstrator if their protest is noisy enough to cause “serious unease” to bystanders. Who defines “serious unease”? Lawyers say this is among the vaguest and most imprecise language they have ever seen.
After police in Bristol were accused of being heavy-handed against activists who were demonstrating, with supreme irony, against the bill, an inquiry said they had “failed to understand their legal duties in respect of protest”. They won’t need to worry if the bill goes through, because their legal duty, as I read it, will be pretty much to crack down on whoever the home secretary dislikes. Today’s home secretary seems to hate climate change protesters. Tomorrow’s may hate you, dear reader.
She says that two new reports warn that we are heading into “government by diktat”, because power is drifting away from parliament:
Bills are often drafted only in outline, with the important detail left to secondary legislation which can’t be amended and may become law with little or no consideration by parliament. “Henry VIII powers” let ministers repeal or amend acts with little scrutiny. And now, according to a committee of the House of Lords, Whitehall is using guidance and protocols as a form of “disguised legislation” — with legal effect but no oversight.
These trends precede Covid-19 and Brexit. Back in 2008, for example, the UK’s climate change target was raised from 80 per cent to 100 per cent reduction in greenhouse gases through secondary legislation and after only 90 minutes of debate — which doesn’t seem right for a decision with such serious financial consequences. More recently, the government’s move to force care workers to be vaccinated was the first time in English law that someone’s Covid-19 vaccination status had explicitly affected their eligibility to work. Yet it was rushed through under delegated powers, with only 90 minutes of scrutiny. In 2015, George Osborne’s attempt to cut tax credits using delegated powers was defeated by the Lords — but for only the fifth time in half a century.
Some will ask, why can’t an elected government do what it wants? The answer is that it can, but in the daylight. The bulk of statutory instruments apply to obscure-sounding matters that are shrouded in technical language. Politicians rarely look too deeply: they are just grateful to be told by officials they won’t have to come back to parliament. If pressed, departments use the age-old argument that they won’t use the powers much anyway. When a Home Office minister assured MPs that “the police [will] attach conditions to only a small proportion of protests”, it felt like a scene from the television series Yes Minister.
It is surprising that a Conservative government is churning out huge volumes of legislation that enlarge the power of the state. It is appalling that it is so cavalier about democratic freedoms. But it is truly astonishing that it doesn’t seem to wonder how others might use the powers it is busily creating.
Is Boris Johnson's Government turning the country into an elected dictatorship, Hungary-style? It certainly looks like it.
