On Tuesday the House of Lords voted on a ‘Fatal Motion’ to stop the government from overturning changes to the Public Order Act, passed earlier this year by introducing secondary legislation. The Labour Party put forward ‘a motion of regret’ but when Baroness Jenny Jones of the Green Party went a step further with the ‘Fatal Motion’ that would have stopped the changes, Labour instructed its peers to abstain and the motion was lost by 154 to 68.

The Act represents a serious assault on our right to protest. But a previous Lords’ vote at least stopped the government from changing its definition of serious disruption from one of ‘significant’ or ‘prolonged’ to one of ‘more than minor.’ disruption. That would have given the police even more powers, effectively banning our legal right to protest. This is the change that the government reintroduced this week. Suella Braverman did so using a statutory instrument (SI), to amend the original 1986 Public Order Act, rather than introduce a new government bill, and this passed in the Commons on Monday night by 277 to 217.

Labour’s Lord Croaker said, “It is an absolute fundamental, constitutional outrage. Primary legislation was defeated. So what does government do. It doesn’t bring forward new primary legislation, it tries to sneak through, in an underhand way, secondary legislation without proper public consultation. They undermine the workings of our parliamentary democracy and, as such, it is shocking.”

His Lordship is almost right. The government did not just try to sneak it through. They succeeded because Labour ordered its peers to abstain! Nine Labour peers including Prem Sikka defied the whip to vote against the motion. He tweeted: “Last night Govt removed our right to protest. You can’t easily protest against school/hospital closure, unfair sacking. Police decide but no accountability. 64 peers including me, supported a fatal motion.” Labour officially abstained.

The official excuse is that it would be wrong for the Labour Party to use the Lords to overthrow a vote in the Commons because the Tories could do the same to them when Labour formed the next government. Croaker said as much in his speech introducing Labour’s ‘motion of regret’ and Wes Streeting repeated the argument in a twitter exchange with Prem Sikka when he said: “An unelected House of Lords can’t block an elected House of Commons. If you don’t want Tory laws to go through Parliament elect a Labour government.”

Streeting and Croaker (and presumably Sir Keir Starmer who imposed the whip) are wrong on two counts at least. The SI was being used by the government to subvert the will of parliament already expressed in the Public Order Act of 2023. Both Lords and Commons passed that law. The secondary legislation passed this week allowed the government to change that law with very little debate or scrutiny. And the Lords have no power to veto government legislation properly introduced. Laws passed in 1911 and 1947 do allow them to veto SIs and other ministerial decrees. That is all.

This may all seem a little arcane but it tells us a lot about Labour. Even when they express outrage at the government for playing fast and loose with the constitution, they can only show ‘regret’ and lack the bottle to even vote against it. They feign ignorance of constitutional law and lie about their reasons. We cannot rely on them to oppose the increasing authoritarianism of the British state. They have only pledged to review this new law. Having shown their own authoritarian streak in banning ideas they disagree with inside the Labour Party, we can expect them to use this legislation to ban protest and dissent when they are in power.

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