If Brady is blocked – what next?
Conservative backbenchers are considering their options
The expectation in Westminster tonight is that Sir Graham Brady’s amendment to the Coronavirus Act will not be chosen by the Speaker when the legislation comes-up for its six-monthly renewal debate on Wednesday afternoon.
The annoyance that this procedural block will cause Tory rebels who – with Opposition support – seemed destined to see the amendment passed if they could only debate it, has been magnified in the last couple of days by the performance of their frontbench. The government has now made it illegal to meet anyone in the northeast of England in a private home or a public house who is not part of your family. This measure locks down two million people. The prime minister has not aided his cause by getting himself confused about these extraordinarily intrusive restrictions. The suggestion that similar curtailments to the freedom of movement and association may soon be coming to London is already causing great unease.
Had it passed on Wednesday, the Brady amendment would certainly have caused a headache for the government. It did not stipulate the procedure whereby parliament would have, as it puts it, “an opportunity to debate and to vote upon any secondary legislation … before it comes into effect” but there was consensus among the leading proponents that the preferred tool would be for statutory instruments to be subject to the “draft affirmative” scrutiny procedure. This mechanism gives MPs the ability to debate and vote on proposed regulations before they are signed into law by a minister rather than afterwards. After all, when a local lockdown is being imposed on a city, there is limited value permitting MPs the opportunity to debate it a fortnight or more after the lockdown commences.
But as Dr Ruth Fox, the director of the Hansard Society, has pointed out, statutory instruments subject to draft affirmative scrutiny generally have to pass through the House of Lords as well as the Commons and can take up to eight sitting weeks to become law.
Such a lengthy process is clearly impractical when ministers are seeking to react to data speedily. So a reasonable compromise would require agreeing speedy expediting through the floor of the Commons, minimising the current digression of a Delegated Legislation Committee and abandoning the Joint Committee on Statutory Instruments involving the House of Lords. As Dr Fox suggests, such expedited consideration can be considered where there are “compelling reasons” – and Covid surely fits into this category. Procedure committees of both houses should meet and consider what can be done in this respect.
However, the government has given no indication that offering greater scrutiny will involve anything on this scale and the signs are that ministers will largely carry on as before.
But many Brady Bunchers are outraged not just by the lack of advance legislative control over the actions of the executive but by the manner in which extreme measures are being justified.
Without that valve, an explosion is coming, the only questions being when, where and how.
In this respect, it might be imagined that the government had learnt lessons from the alarming (and spectacularly inaccurate) predictions of Professor Neil Ferguson which helped make the case for the original nationwide lockdown in March. If lessons were learnt in Downing Street, then it was that such scare mongering worked.
How else can be explained the licence given to the chief scientific officer, Sir Patrick Vallance, to present a graph which extrapolated 50,000 deaths from a second wave by mid-October if tougher restrictions were not imposed? Sceptical MPs (and increasingly journalists) are incredulous at speculation being presented by officialdom in this way. Number 10 earlier today tried to defend Vallance’s graph on the grounds that it was “an illustration of how quickly the virus can move” and was not “a prediction.” That is a level of nuance that may have been lost on its original, mass audience. That some MPs now suspect creating that misunderstanding was deliberate gives a sense of how the mood has darkened.
Given the strength of such feelings, the whips office will be relieved to learn that the Speaker will not be allowing Brady’s amendment to be debated.
But there is an alternative view that the Brady amendment would have proved more a safety valve to diffuse the build-up of steam than a hand break. Without that valve, an explosion is coming, the only questions being when, where and how.
In this respect, the whips remain particularly unnerved by the tactical nous and insurgency galvanising skills of Steve Baker. As one whip mused, “the best place for Steve would be a plane to Japan doing trade deals. He’d definitely be less of a nuisance in the air than on the ground.”
Unhelpfully, the free trade agreement with Japan has now been signed. And Baker is still at large.
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