In recent months, Home Secretary Suella Braverman may have been distracted by the prospect of Party Conference season and talking about being ‘open-eared’ to critics, and adapting to face up to mistakes, but she may have forgotten about a charge that could land her in court. In early 2023 the Government passed into legislation the Public Order Act (POA). This act was mainly passed in order to give the police more powers to remove protestors causing disruption to the general public, such as Just Stop Oil. There were, however, some elements of the bill that would ‘reduce the threshold for “serious” disruption from “significant” and “prolonged” to “more than minor”’, that were rejected by the Lords and removed from the bill before being passed through parliament. All above board so far. This was not the end of the matter, however.

The POA was a piece of Primary Legislation, something that is given a large amount of scrutiny in both the Commons and the Lords. There is also Secondary Legislation which can be passed through parliament but is given much less scrutiny. The only option afforded the House for Secondary Legislation is either to vote for or against. Some months after Braverman’s intended additions had been defeated and removed from the POA she decided to push through those same measures with a piece of Secondary Legislation. This passed through both Houses, but not without raising some eyebrows.

A cross-parliamentary Lords committee scrutinised the Regulations and found parts to be ‘not satisfactory’ and even went so far as to say, ‘We believe this raises possible constitutional issues that the House may wish to consider.’ The committee also mentioned that, given the far-reaching and controversial nature of the policy, a proper consultation was not done. The Government only consulted law enforcement bodies and National Highways before passing the legislation. The committee, however, argued that the Home Office had ignored even the Government’s own Consultation Principles. They stated that, ‘A full public consultation, before bringing forward the proposals, would have been appropriate to maximise the chances that the outcome was clear and workable.’ The Lords were also not impressed by the Home Office’s justification for bringing the legislation back without amendment given that it had been defeated sternly once already. Suffice to say, the Lords were not happy bunnies.

And they weren’t the only ones. A human rights group, Liberty, have decided to take the Lords’ committee constitutional worries all the way to the High Court, who have now permitted the group to sue the Home Secretary. Akiko Hart, the interim director of Liberty, has accused the Home Secretary of ‘deliberately’ disrespecting the rules, alleging that ‘The home secretary’s actions have enabled the government to circumvent the will of Parliament.’ The group’s lawyer, Katy Watts, has argued that the introduction of the Regulations through Secondary Legislation represents ‘a flagrant breach of the separation of powers that exist in our constitution’. They have demanded that the ‘government respects the law and that the Home Secretary’s decision is reversed immediately.’ 

The grounds brought against the Secretary of State are that they have acted beyond their powers on two counts, and that the Regulations are unlawful due to unjustified interference with Parliamentary sovereignty as well as procedural unfairness because of one-sided consultation.

Now, what should happen if the Home Secretary is guilty on any or all of these counts? Obviously, if Braverman is not guilty then whilst people will remain grumpy there won’t be much else to do. The lawsuit from Liberty demands that the regulations passed be overturned and it strikes this author that should any of the grounds be upheld in a court then that is sufficient reason for the Regulations to be overturned.

I suspect however, that if the Home Secretary is deemed guilty of any one of the first three counts, then some will be hollering loudly for her resignation (if they weren’t already). To lead a department in actively disregarding the wishes of Parliament by passing previously opposed legislation through the backdoor is a very serious act to have been the guiding hand of. One would assume that such an act would call for more than a simple slap on the wrist in response. Some might argue that the minister could have their conduct called into question as to why they saw it as acceptable to disregard the wishes of parliament and circumvent the conventional process of the House in order to force through legislation. It seems to me that to have a Home Secretary be responsible for two pieces of legislation to be deemed illegal (the other being the Rwanda scheme) would be highly embarrassing for the Prime Minister when a general election looms so large over the next 12 months. If the Prime Minister can’t get his cabinet in line with the law, why should the population go along with his plans?

Perhaps the Home Secretary will be able embrace this experience as an opportunity to admit wrongdoing, as she so passionately stated is a hallmark of the Conservative Party’s long survival and success. 

FOOTNOTE: Needless to say, ‘admitting wrongdoing’ being a core value of the conservative party doesn’t really inspire much confidence.  Like having a friend whose party trick is spilling their drink all over you, only in order to demonstrate how good they are ‘sincerely apologising’ for the mess (probably after someone else has cleaned it up). Besides, the thought also occurs that if the conservative party were to properly lean into their hallmark of ‘admitting wrongdoing’, this would hardly leave much time for anything else. ed Seth Cox.
I have a sneaking suspicion that instead of bowing with humility to the deference of opponents, the Secretary of State would rather take the same ‘any means necessary’ approach to pushing through her anti-protest legislation as she wants to take to immigration. 

© nicked journal Uncovering Legal Absurdities