Executive Action
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.
Comments
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7 September 2024
at
7:24pm
eeffock
says:
how can anyone be surprised that the Starmer-Labor gang are Tories by another name?
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7 September 2024
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9:39pm
steve kay
says:
@
eeffock
Here in Wales the name of the party is Llafur.
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8 September 2024
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8:46am
MattG
says:
The author shows a staggering lack of knowledge of recent UK political history.
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8 September 2024
at
8:24pm
Debord
says:
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MattG
Reeves also has the ability to borrow - interest payments remain a tiny % of government expenditure. But there are two fundamental points here: first, that everyone making your argument seems to just accept that current spending priorities are absolutely correct and spending anything else means cuts elsewhere. If that's the case, what were the Tories doing wrong? And indeed why were Labour immediately able to say they'd continue funnelling billions to Ukraine and, indeed, indicate yesterday that they will increase that funding? Why does this never inspire talk of 'black holes'?
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12 September 2024
at
4:05pm
Nigel Rose
says:
@
Debord
As I'm sure you understand, the Labour Party was incredibly worried about winning the general election after the Corbyn debacle, and felt it necessary to commit themselves to strict financial rules in order to win the election. Neither you nor I know for certain if that was entirely necessary, but if you've been out of power for 14 years it can make you rather nervous. There is rather a lot of silly stuff being said by the left at the moment pretending that they don't know why the right of the Labour party did what it did and completely failing to learn the lesson of Corbyn. My own thoughts are that Reeves will bring in an array of "taxes" to bring in more money including loosening the borrowing rules. These will come in over a period of time not all at the next budget. It's only been 2 months after all. Perhaps when the left takes responsibility for the utter mess that Corbyn made then they, similar to the way that Tories need to come to terms with their mess, then they will understand their responsibility in pushing the Labour Party further to the right then any of us wanted. And if anyone else says to me, after a entirely unnecessary further tory term, that Corbyn got more votes than any other Labour leader.................
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13 September 2024
at
9:08am
Nick Shimmin
says:
@
Nigel Rose
"And if anyone else says to me..."; so you don't like to hear the truth, then, in economics or politics? The absurdity of those like you with your Corbyn pathology is that the "utter mess" you speak of is all in your mind - you seem not to have noticed that the Labour Party was in opposition, therefore the only "utter mess" actually realised was that of Tory economics, which the Starmer government is now apeing. Oh for a little Corbyn-esque "mess" instead...
Read moreEver since Thatcher core Conservative policy was small state, reduction of government functions and "big society", sale of assets and privatization, tax cuts. Successive chancellors "drained the British state" not because the cupboard was bare but because of ideological commitment. They also increased public debt to just shy of 100% GDP. The Truss episode was probably the worst example of increasing debt to fund tax cuts. Simultaneously their signature project was Brexit damaging the economy.
A look at the development of debt vs GDP shows that no Tory chancellor produced anything approaching a balanced budget.
Unless one subscribes to economic theories that claim a sovereign state can borrow without limit and always pay the interest due, the current situation is categorically different from 2010. Osborne had the ability to borrow, Reeves finds herself with a "maxed out credit card" and unfunded spending promises. For Osborne the household metaphor was political propaganda. For Reeves the choices are either more debt to fund consumption or some cuts combined with tax increases.
Speculation is that Reeves will increase wealth taxes (inheritance tax, CGT, maybe even council tax), which is the right thing to do.
The second fundamental issue is that many were loudly trumpeting for months prior to the election that Labour's commitment to the Tories' fiscal rules (a political choice) meant that they would have to cut spending and/or raise taxes. The idea there was some 'surprise black hole' is just laughable. Yet Reeves' response was that she had no plans which would require any increases to tax. You mean wealth taxes, but Labour are steadfastly refusing to go near actual wealth taxes that would raise many, many billions (a wealth tax, land value tax, pension tax reliefs, the inordinate tax breaks given to private equity and the broader finance sector etc) but are instead talking up a couple of symbolic changes which are primarily about being able to say 'we're all in this together' rather than being any serious attempt to raise redistribute wealth in the UK. And council tax is most definitely not a 'wealth tax'.