Sir Graham Brady. Dan Kitwood/Getty Images
Artillery Row

Graham Brady’s Covid rebellion has the numbers to succeed

Tory MPs are ready to rebel against government by decree

Unless Matt Hancock finds a workable accommodation with Sir Graham Brady, the chairman of the 1922 Committee of Tory backbench MPs, the government faces the prospect of defeat next Wednesday when the Coronavirus Act 2020 comes up for its six-monthly renewal in the House of Commons.

The scale of backbench unhappiness is such that according to Steve Baker, who is working alongside Sir Graham, “the magic number was exceeded with 24 hours” of his beginning to canvas support for an insurrection among fellow Conservative MPs. Victory would require Labour and SNP MPs to seize on the opportunity to inflict a humiliating defeat on the government by voting with the Tory rebels. Indications increasingly suggest that this could happen. An increasingly dispirited Whips Office, which feels ignored and disrespected by Downing Street, is especially concerned at the sight of the former ERG “Spartans” leader, Baker, at Westminster furiously tapping away on his phone – a colliery canary of trouble ahead.

The government is equally concerned that the rebellion is being led by Sir Graham Brady, whose role as chairman of the 1992 Committee makes him the most authoritative channel of backbench opinion. In a sign of how seriously Downing Street management is taking the senior shop steward’s challenge, on Monday evening the prime minister privately went to see the 1922’s executive committee.

The primary complaint is that the government is using powers granted to it under the 1984 Public Health Act and 2020 Coronavirus Act to enact previously unconscionable measures without any prior debate in the Commons. Brady has condemned ministers who “have got into the habit of ruling by decree.”

MPs were prepared to cede considerable authority to the government in March in a period of acute crisis when there appeared to be only weeks if not days to “flatten the sombrero” to save the NHS from being overwhelmed. But Boris Johnson’s admission in his statement to Parliament today that the latest curtailments (which include further restrictions on hospitality opening hours and the number of people who can congregate at weddings, funerals and other public, private and sporting functions), would likely last at least six months has alerted MPs to the reality that government by decree may last until a vaccine is approved. If, indeed, a vaccine is approved. This is a war that will not be over by Christmas.

Far from persuading potential rebel MPs that a new crisis is looming, the performance of the government’s chief medical and scientific officers, Chris Whitty and Sir Patrick Vallance, at their press conference yesterday has heightened consternation that the government is over-reliant on advice predicated upon worst case scenarios that is trumping competing economic and civil liberty considerations.

the sight of Steve Baker at Westminster furiously tapping away on his phone – a colliery canary of trouble ahead

The likelihood of executive mission creep was foreseen back in March by David Davis and Steve Baker who pushed the government into adopting an amendment reducing from two years to six months the period in which the powers of the Coronavirus Act must be renewed by parliament. That renewal debate will now take place next Wednesday.

However, having been enacted as a statutory motion, it is unlikely that The Speaker will permit a simple amendment to the Act. Rebels would therefore have to rubber-stamp the legislation as a whole or repeal it as a whole – there will be no opportunity to fine-tune. Very few MPs would be prepared to vote down the Act in its entirety. Any such rebellion would be an exercise in political futility.

But an alternative avenue remains open. Whilst the legislation may be declared unamendable, Sir Graham Brady could seek a scrutiny clause appended to the end of the Act. Rebels are pinning their hopes on this prospect. They may find a friend in the The Speaker, Sir Lindsay Hoyle, who has already made clear his intense irritation with Matt Hancock’s disregard for informing parliament first of major legal changes like the “rule of six” and for the government’s brusque imposition of restrictions in his own Chorley constituency.

What this scrutiny postscript may encompass is now a subject of negotiation between Brady and the government although the principle would be that fresh regulations would require parliamentary approval before they could be enforced.

Given the potentially large number of regulations this involves, including those that the government might seek to implement when parliament is not in session (for instance during the coming Christmas recess), the government may argue that such a provision is unrealistic in the current climate.

But a precedent was created in the drafting of the European Union (Withdrawal Agreement) Act for the creation of the European Statutory Instruments Committee as a sifting committee. This committee would review what “made negative” statutory instruments should be converted into “made affirmative” statutory instruments.

According to research by the Hansard Society, this year the government has so far laid over 230 Coronavirus-related statutory instruments before parliament. But of these, 175 were “made negative” procedures which ministers signed into law. They will remain the law unless parliament actively annuls them within 40 days. A further 53 have been “made affirmative” statutory instruments whereby the minister still enjoys the initiative of signing the measures into law but they will cease to be legal unless actively approved by the Commons (often the Lords too) within a statutory period ranging from 28 to 40 days. A sifting committee could determine which statutory instruments should fall into the category of draft affirmative – which a minister cannot sign into law unless the draft is approved by both Houses following a debate (or the Commons on its own if it is a financial statutory instrument).

The appeal of such a mechanism is obvious to Tory backbenchers concerned that laws are being made without scrutiny and are difficult to repeal. But there is no in-principle reason why Opposition parties need object to such a parliamentary safeguard either. Hence the likelihood of a rebellion having the numbers to succeed next Wednesday.

As Steve Baker puts it, “too many MPs aren’t really persuaded any more that these restrictions are proportionate. The fuss is about trying to get the government to do less in restraining our liberties. There’s a row about the scientific evidence and what it means. There’s a row about whether that evidence justifies the lockdown measures that have been taken. How does parliament force the government’s hand? The renewal of Coronavirus Act is the moment.”

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