https://www.lrb.co.uk/blog/2024/september/executive-action

6 September 2024

Nicholas Reed Langen

So much for turning on the public spending taps. Rachel Reeves’s first instruction to civil servants once behind her desk at the Treasury was to get back under the sink and give the wrench yet another twist to the right. Fourteen years of austerity – with a brief pause for the momentary largesse of the pandemic – are apparently not enough. The new Labour chancellor thinks that Osborne, Hammond, Javid, Sunak, Zahawi, Kwarteng and Hunt might have missed a drop or two somewhere as they drained the British state. Government departments are being asked to find billions of pounds in savings yet again.

There can’t be many voters, let alone economists, who don’t see this as madness. George Osborne sold austerity to the nation in 2010 with a bad yet persuasive metaphor, filched from Margaret Thatcher, comparing the state to a household: it can’t go on spending more than it makes for ever and ever; eventually debts are called in. Back then, the obvious riposte – that the state isn’t a household and shouldn’t be run like one – won over only a few. But no one still thinks the state is like a household now.

It isn’t only on the economy that Labour is aping the Conservative Party. In May this year, the High Court ruled that the protest regulations enacted by Suella Braverman when she was home secretary were unlawful. Frustrated by the actions of groups such as Just Stop Oil or Extinction Rebellion, the Conservative government’s solution had been to legislate away much of the right to protest. The Public Order Bill 2022, introduced by Priti Patel, sought to redefine ‘serious disruption’ – which gives the police the right to intervene in protests – as anything ‘more than minor’. Such a low bar would have given the police the power to intervene at will. The only protests that would have gone ahead would have been those the police wanted to go ahead.

Parliament was wise to this. Its Joint Committee on Human Rights said the bill would have a ‘chilling effect on the right to protest’. The Commons was whipped to vote the legislation through, but the Lords excised the clause from the bill before sending it back to the Commons. After several rounds of parliamentary ping-pong, the bill – without the clause redefining ‘serious disruption’ – was passed as the Public Order Act 2023.

Instead of fighting the Lords over the amendment, Braverman – who had by now replaced Patel as home secretary – tried to sneak the power onto the statute books through the back door. Under an earlier piece of legislation, the Police, Crime, Sentencing and Courts Act 2022, the home secretary has the power to define ‘serious disruption’ at her discretion, through a so-called Henry VIII clause. This was the route Braverman took. After consulting with the police – but not with civil liberties groups – the government laid a regulation before Parliament that meant protesters who caused ‘more than minor’ inconvenience were fair game.

Ignored by the government during the consultation period, Liberty – with the support of the Public Law Project – challenged the legality of the regulation in the High Court. The two judges hearing the case, Lord Justice Green and Mr Justice Kerr, had little truck with the government’s attempts to redefine the language of the legislation. In trying to lower the threshold for lawful protest, Braverman had exceeded the power granted to her in the original legislation, and her regulations were ultra vires. In the final months of Rishi Sunak’s government, the home secretary announced the government’s intention to challenge the decision in the Court of Appeal.

With Labour returned to power and the Tories reduced to a rump, the expectation was that the appeal – and the regulations fettering protest – would be dropped. Shortly after taking office as home secretary, Yvette Cooper paused the appeal. But last week the government announced that the High Court’s decision was not the end of the matter. In opposition, Labour MPs were whipped to vote against the original iteration of the bill. But now the appeal is back on.

In a statement issued last week, Liberty said that ‘the Home Office’s decision to continue the case shows disregard for the rule of law and completely goes against previous statements from the government.’ If the Home Office appeals the case all the way to the Supreme Court, it may well get the outcome that it – and the Conservative Party – desires. Lords Reed and Sales, two of the final court of appeal’s leading experts on public law, have shown a marked deference towards executive action. A majority might well rule that the regulations were laid before Parliament, giving the Commons and the Lords the opportunity to reject them, but they failed to do so. From here, it is but a step for the justices to find that being undesirable does not mean being unlawful.

With a fractured electorate and an uncertain mandate, Keir Starmer and his cabinet are tiptoeing around the public realm, wary of doing anything controversial and so failing to do anything meaningful. No radical reform is promised. Instead, there is just the unspoken hope that pursuing much the same policies as the Tories will somehow now bring transformative results.