Revealed: The new batch of laws undermining parliament

Away from prying eyes, the government is very quietly making massive changes to immigration, prisons and drug law.

Photo by Pablo Martinez on Unsplash

They're just churning them out now. There's no sense of restraint. No hint of constitutional decency. They're completely out of control.

As soon as parliament was back from the conference recess, the government started pumping out ministerials edicts, on acute areas of public interest, without any scrutiny, or assessment of the likely consequences, or thoughts for the basic operation of a democratic society. Big fat pivotal changes in law, passed without a bat squeak of scrutiny or accountability.

They cover all sorts of things - immigration, drugs, prisons. And in every case they're likely to have severe knock-on effects, many of which the government demonstrably has no knowledge of. But no-one will know. MPs won't know. Journalists won't know. And the public won't know. Because this whole area of law is conducted under cover of darkness, with no fanfare, according to impenetrable legislative language and procedures. 

The mechanism they're using is called a statutory instrument. If you're the kind of person who reads this newsletter, you probably know what that is. You're all fucked up and broken, just like me. But just in case you don't, here's the low down: They're tiny little bits of executive power designed to turn ministers into mini-emperors. They sidestep the normal parliamentary process of debates and scrutiny and instead basically allow them to create law on the spot. 

Ministers ask for the power to pass a statutory instrument in an Act of parliament, but once it's passed, they can just start machine gunning them onto the statute book. There are some face-saving provisions for MPs to stop them, but they're not remotely functional. Of the tens of thousands of negative statutory instruments laid in the Commons since the 1950s, only seven have ever been rejected. The last time it happened was 1979.

So what've they done this time?

On October 19th, the government laid the Immigration Health Charge Amendment Order 2023. Yes, the name is very boring and all of that is entirely to the benefit of No.10, which much prefers it if no-one can be bothered to look into what it's doing. 

If anyone wanted to work out the basis of the order or what the hell it does, they'd have to follow an interminable legislative trail. It runs backwards to the Immigration Act 2014, then veers off to the National Health Service Act 2006, before arriving at the Immigration Health Charge Order 2015. Then they'd have to put all four bits of the jigsaw together to ascertain which bits of text are amending what. None of this is necessary, of course. You could write it all out in a self-contained schedule in clear English for public transparency and understanding. But that is not in the government's interest, so it doesn't happen.

The new statutory instrument works to massively increase the fees legal migrants have to pay to access the NHS. The charge for students and young people will increase from £470 to £776. The fees for everyone else will increase from £624 to £1,035.

These are preposterously high numbers. They break a core moral rule of a political society: that you pay in and you get out. Migrants pay taxes. They therefore deserve to have equal access to the services funded by those taxes, just like anyone else. But instead, we apply a further additional charge at an extortionate rate. This money is then used for profit generation by the state. 

This type of measure can drive people into poverty. The number of destitute migrant households has increased by a barely conceivable 95% since 2019, according to this week's Joseph Rowntree report. There are currently over a million destitute migrants in the UK, including 338,200 children. Instead of trying to improve the situation, the government is making it worse. 

In one sense, this is a continuation of the hostile environment - it's an attempt to make the UK a less welcoming place to live. But honestly that understates the problem. If we were uniform in our approach, we would at least have the virtue of being consistently reactionary. But we fail even at that. 

Underneath the cruelty, we are in fact still actively trying to encourage people to come here. Last year, 166,408 people were given worker visas, along with 147,656 of their dependents. These were primarily Indians, Nigerians and Zimbabweans, as we tried to make up for the labour force we lost through the end of European free movement. We're like a national version of Two-Face, with one side of our personality welcoming newcomers to the UK and the other side screaming at them to fuck off.

What kind of thought has been put into the impact of a massively increased health charge applying to people from countries where those kinds of savings might be unusual? What are the economic consequences to the UK if the number of arrivals consequently falls? What's the impact to the exchequer if it leads to a spike in child deprivation levels in migrant households? Does the pro-immigration part of the British state know what the anti-immigration part is doing? 

These would all be good questions for MPs to ask. They would all be good reasons to stop it. But neither of those things will happen. It's a statutory instrument. It passes in silence. It turns into law by virtue of ministerial command.

You can see the exact same process taking place with the Draft Criminal Justice Act 2003 Removal of Prisoners for Deportation Order 2023, introduced on October 13th. This allows the government to free foreign offenders from prison earlier in their sentence, so that it can deport them.

It's quite the change in policy. Back in 2022, the government increased the maximum sentence a magistrate could impose. Then, last March, it reduced it. Now it is saying foreign prisoners can be released from prison and removed from the UK even earlier. There is no consistency to the government position at all.

So why's it happening? Because the prison system is full and we need the space. There are currently 88,126 prisoners in England and Wales, next to a usable operational capacity of 88,890. That leaves just 764 spare places. The statutory instrument is expected to free up 300 spaces at a time. It's not a lot. But when you've only 700 or so to play with, you'll take what you can get.

The trouble is, this constitutes a direct contradiction of the government's previous argument for jailing foreign offenders. Not so long ago, the House of Lords Secondary Legislation Scrutiny Committee asked the Ministry of Justice why it bothered to lock up foreign offenders at all. Why not just deport them and save some money? They got a very interesting reply. It was "to ensure convicted criminals are punished and to uphold confidence in the Criminal Justice System... This acts as a deterrent for criminal activity in our country."

That's fascinating. If true, it suggests that the current statutory instrument will reduce confidence in the criminal justice system and encourage future criminal activity. 

So what's the answer to all this? We'll never know, because there's no debate and no scrutiny. Indeed, there's barely any information from the Ministry of Justice at all. They haven't provided information about the types of offences the change would apply to, what sentences the foreign criminals were serving, what kind of discussions would take place with their home governments before deportation or whether they'd be likely to face charges when they make it back home. "The absence of such significant background information," the Lords committee concluded, "makes effective scrutiny of the instrument impossible."

Finally we have another bloody silly thing - the Misuse of Drugs Amendment Regulations 2023, laid on October 18th. Fascinating bit of legislative knitwork, this. It's designed to compliment the government's recent decision to ban the possession of nitrous oxide, otherwise known as laughing gas. 

Real actual bona-fide experts did look at whether this is a good idea. In March, the Advisory Council on the Misuse of Drugs did a thorough report on the substance. It concluded that "current evidence suggests that the health and social harms are not commensurate with control under the Misuse of Drugs Act 1971". There's about one death per year in the UK per million users, compared to 28,000 deaths for 40 million users of alcohol. But home secretary Suella Braverman did it anyway, because of course she did.

One of the core problems the Advisory Council cited was the impact of a ban on the legitimate use of nitrous oxide, including in medicine, dentistry, food preparation and catering. "Control under the Misuse of Drugs Act 1971," the experts warned, "could produce significant burdens for legitimate medical, industrial, commercial, and academic uses. The current scale and number of legitimate uses that stand to be affected is unknown but is estimated to be large."

So what has come of that warning? Absolutely nothing. Instead, the government has simply stitched a bunch of exemptions into the ban using its latest statutory instrument. It basically removes those in possession of the substance from all the provisions of the ban, unless that person "intends to wrongfully inhale it" or "knows, or is reckless as to whether, it is likely to be wrongfully inhaled by some other person".

There's a whole lot of easily foreseeable wretched bullshit going on in that formulation. How will police or the courts assess whether someone was reckless about someone else being likely to use it recreationally? What's the test for that? Do they need a whipped cream licence? It's the kind of question that seems trivial and legalistic, unless you're the poor sucker pulled up in court as a drug dealer. 

What kind of debate was had about this? What sorts of questions did MPs ask about it? Well, once again, bugger all, because it's all established by slipping this innocuous little statutory instrument under the door after conference season and hoping no-one sees it.

These three examples are just the tip of the iceberg. In the same post-conference period, we've seen other statutory instruments introduced on RAAC in schools, 15-year limits on overseas voting, minimum terms for convicted murderers and much more. A ceaseless churn of unassessed, under-analysed law. It's like we've given up on actually passing primary legislation to be debated in the Commons Chamber and decided to run the country by ministerial edict instead.

This isn't just a democratic problem. It's a functional problem. With no-one to point out the problems or even discuss them, the government blinds itself to the consequence of its actions. It can't assess the likely impact on society, or on its existing policy initiatives, or on the economic situation it finds itself in. 

It's a remorseless unstopping churn of shit law - without an evidence base, or a demonstration of necessity, or an assessment of its efficacy, or even an awareness of whether it contradicts existing government policy. A mad scramble of authoritarian irrationality. And then they wonder why we're in such a mess.

Some people to follow

This seems an old-fashioned notion now that Musk has detonated Twitter, but on the off chance that it survives it's nice for me to have a place to highlight the people who helped with a post or who are just generally amusing or knowledgable and worth your time. 

The piece above was prompted by this thread by the Hansard Society who are doing vital work assessing statutory instruments and proposing workable alternative systems that might bring them under control. Director Ruth Fox, senior researcher Brigid Fowler and researcher Matthew England are particularly worth a follow. To keep up with what's going on in the world of statutory instruments, check in on the Lords Delegated Powers and Regulatory Reform Committee and the Lords Secondary Legislation Scrutiny Committee.

Mita at the brilliant Joint Council for the Welfare of Immigrants (JCWI) was invaluable in helping me work my way through the nightmare jungle of amendments and footnotes in that immigration healthcare instrument. Oh and thank you to Louise, at the Sheffield event, for pointing me towards the topic.

One thing that made me happy

Seeing as it's Friday, I might as well throw one thing in here each week that helps alleviate the gloom, which at the moment is pretty all-encompassing. The Burial, starring Jamie Foxx and Tommy Lee Jones, is currently on Amazon Prime. It's an absolute full-score delight, a proper old-school 90s legal drama, which cracks along with a manic energy while still finding time for relatively complex contract law details and a sense of historic racial injustice. Foxx is seriously underrated. He has blow-the-lights movie star megawatt charisma energy that isn't sufficiently recognised. It's a perfect film for pizza delivery on a Friday night.

Odds and sods

I just want to say thank you again to those who signed up for a paid subscription without even being asked, and especially for the messages you sent. I am a frigid cold hearted emotionally undeveloped Englishman and therefore do not enjoy experiencing human emotions, but it meant a lot. 

I'll set up a paid subscription eventually - probably around the turn of the year. I gave up two paid gigs to create the time for this experiment and I'll need to make up the money I lost in order for it to be sustainable. But I am going to try my damndest to keep the newsletter free-to-access. 

The reason for that is political. Paid subscriptions for journalism put it in a much better place than during the free-for-all clickbait era. But I'm increasingly concerned by the fact that most of the reliable content online - from quality reporting to academic research - is behind a paywall, while the batshit conspiracy theory stuff is just flying out all over the place. 

So I'm putting serious thought into what the offer is for paid subscribers, given that I don't want it to be newsletter access. Reader Brian Dubb had the excellent idea of recording the column as a kind of mini-podcast, which I'm going to do if I can figure out the technical details. If anyone else has any ideas, I'm all ears. Basically, it would be very helpful to hear the sort of things that would get you to upgrade your subscription, for this or any other newsletter. So yeah, send 'em in. I am fucking terrible at this commercial stuff.

Have a good weekend, kids. Try to keep the doom-scrolling to a minimum.