Judges in the high court have found that the former home secretary Suella Braverman acted unlawfully in making it easier for the police to criminalise peaceful protest. That is a very good thing for society and democracy. The rights of non-violent assembly are among our fundamental freedoms, providing a touchstone to distinguish between a free society and a totalitarian one. Liberty, the civil rights campaigners who took the government to court, ought to be congratulated for standing up for all our rights. At the heart of this case was whether a minister could, without primary legislation, decide what words meant in law. The court, thankfully, thought that such matters were best left to the dictionary.
During protests by environmental groups in the summer of 2023, Ms Braverman had decided to rule by diktat. Consulting only the police, and not the protesters who would have been affected, she used so-called Henry VIII powers that the government had conferred upon itself a year earlier. These allowed her to lower the threshold at which the police would intervene to impose conditions on public protest, defining “serious disruption” as anything “more than minor”. There’s an ocean of difference between the two. But Ms Braverman was unconcerned that she was shamefully pursuing a nakedly authoritarian move to constrain the right of peaceful protest by stripping words of their meaning.
The Labour peer Shami Chakrabarti pointed out in the House of Lords last year that ministers should recall George Orwell’s warning that the distortion of language could “quickly lead to abuses of power”. The upper chamber rejected the government’s amendment that sought to expand the definition of “serious disruption” in the law relating to public order to include anything which was “more than minor”.
But a few months later, Ms Braverman used the Henry VIII clauses to ram the measure through the Commons with little consultation and without proper parliamentary scrutiny. It was unparalleled for the government to seek to introduce, by a secondary measure, a law that had been rejected by primary legislation. The high court did not engage with the constitutional issues raised by Ms Braverman’s power grab. Judges could strike down her decision without seeking a confrontation with ministers who hanker for “elective dictatorship”, discretion perhaps being the better part of valour.
It is much harder for a British court to find against Rishi Sunak’s Safety of Rwanda Act. This is because it was primary legislation passed by parliament. Judges have been forced to accept as fact that the “Republic of Rwanda is a safe country” despite mountains of evidence to suggest otherwise. However, the European court of human rights is not bound by the UK legislation or by the Orwellian presumption that Rwanda is “safe”. Democracy is damaged by politicians who assume the right to turn fiction into legal reality. The government is being urged to change laws to crack down further. But have Conservatives given any thought to the consequence of such practices falling into the hands of their opponents? The cry that parliament is sovereign to legislate as it wishes might be one that dies on Tory lips in opposition.
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