Green Party Baroness Jenny Jones has tabled a 'Fatal Motion' for 13 June to stop the government from using a ‘Ministerial decree’ to overturn a vote in the Lords. This is the first time ever that the government has tried to use secondary legislation to directly overturn the will of Parliament.
The Government lost a vote in the Lords on the Public Order Bill to change the interpretation of ‘serious disruption’ of other people’s day-to-day activities to mean ‘anything more than minor’. The Lords opposed this change by 254 votes to 240 only a few weeks ago.
The government are now trying to reinsert this change via secondary legislation which has less Parliamentary scrutiny and cannot be amended.
A fatal motion is a rare parliamentary procedure that could kill off the passage of the government’s legislation and is the strongest opposition which can be taken in the House of Lords.
The fatal motion will trigger a vote in the Lords (13 June). If the statutory instrument is rejected the Government will have to restart the process of passing the legislation. The Parliament Acts of 1911 and 1949 which established the ultimate supremacy of the Commons do not apply to secondary legislation.
The House of Lords Secondary Legislation Scrutiny Committee has drawn ‘special attention’ to the change. The committee’s report stated: "As well as not justifying the substance of the provisions, the Home Office has not provided any reasons for bringing the measures back in the form of secondary legislation, which is subject to less scrutiny, so soon after they were rejected in primary legislation.
“We are not aware of any examples of this approach being taken in the past; the House may wish to verify this with the Minister. We believe this raises possible constitutional issues that the House may wish to consider."
The last time the Lords passed a Fatal Motion on a Statutory Instrument was in 2015. It provoked a mini-constitutional crisis and the government ordered a review of the powers of the House of Lords.
Labour are currently backing a regret motion on the government’s change. If passed, this will be taken as a complaint and will have no impact on the legislative change.
Green Party Baroness, Jenny Jones said: “This is a make-or-break moment for parliamentary democracy. The Lords defeated the government on this issue and the Minister is now acting like a seventeenth-century monarch by using a decree to reverse that vote.
“What is the point of Parliament if a Minister can just ignore the outcome of debates and votes by imposing draconian laws on the public?
“This is not a one-off, but part of a trend of legislation that undermines parliamentary democracy by giving Ministers increasing powers to make, delete or change laws. In the last four years, we have seen a series of skeleton bills pass through parliament that hand over powers and discretion to Ministers to make decisions with minimal parliamentary scrutiny."