I thought I had seen it all from this government. But this week in the House of Commons we have reached a new and deeply alarming moment, not just for education policy but for the functioning of parliamentary democracy itself.
Labour won two votes in the Commons on Wednesday, including my motion against the latest rise in tuition fees. This rise – of up to £1,000 extra for an undergraduate course – was engineered through statutory instruments, rather than primary legislation.
Few people outside the Westminster bubble have heard of statutory instruments (“secondary legislation” in parliamentary jargon) but we will all be hearing more about them under this government. They allow ministers to change the law without needing to pass a whole new Act through parliament.
They are meant for relatively minor changes that Parliament has allowed ministers to make without needing a full parliamentary process. But they were never meant to be a way of dodging Parliament entirely.
In the case of tuition fees, the Tories quietly wheeled out an increase in fees on the last day before a parliamentary recess, tabling so-called “statutory instruments” bringing the fees hike in to force.
The rules give MPs 40 days to lodge an objection to any new regulations under this process, which should lead to a vote on them – and that is exactly what I did. It took some months, but eventually the government conceded a vote on 18 April 2017 – only to immediately call the snap general election and dissolve Parliament before it could be held.
After losing her majority, you would have thought that the Prime Minister might assess where she went wrong. After all, the surge in young people voting showed that tuition fees were an important issue. Clearly, she didn’t. The leader of the House of Commons, Andrea Leadsom, instead decreed that there would be no parliamentary time on the issue. This was despite her predecessor promising the House of Commons we would have a debate and a vote just weeks before.
We called an emergency debate, in effect forcing time on the Commons floor. When the universities minister Jo Johnson tried to say the time limit had passed, the Speaker had to slap him down, making clear we had done everything within the rules to call a vote. But still they refused.
Which brought us to this week. The Opposition is allowed time of our own on the floor and we can also table motions. So we did: a resolution of the House revoking these specific regulations.
I warned the government that the debate we were having went beyond policy differences on tuition fees. This was about the role of the House of Commons and, ultimately, our democracy. But not only did they refuse to address the point, they even refused to vote, so the motion to scrap the fees rise passed unanimously.
Ministers dismissed the votes as symbolic. They even told their own MPs not to bother voting on it. But I was very clear that the motion I tabled was far from a simple statement of opinion. It was a resolution revoking the regulations that increased the cap on fees. Far from being symbolic, this was the legislature doing its job: legislating.
Since then, ministers have indicated that they will simply ignore it. In an argument straight out of the pages of a Kafka novel, they argued that we had not held the vote within the 40 days. That, of course, was because they would not give us the time. So the government can now just refuse to allow the Commons to vote within the time limit, then tell us that any vote won’t count because we’re out of time.
This is not a dry, constitutional point for lawyers, professors and bewigged clerks to debate in legal textbooks. It is a serious attack on the role MPs have in checking government power. The Commons Speaker said he cannot recall a recent example of such behaviour, setting a “very worrying” precedent.
I said this week that the government are not just running scared, but dragging us in to a constitutional crisis. The details may sound complicated by the fundamental point is simple. In a parliamentary democracy, it is the job of parliament to decide the law, not the government. In this case, the government has changed the law. It has done so not just without parliament agreeing but despite parliament actually voting against it.
Once we allow this principle to slide, parliamentary democracy itself is undermined. It is even worse when you look at the government’s Brexit Bill. This allows ministers sweeping powers under the very same mechanism that they used to change tuition fees – statutory instrument. They even want the power to change full-blown Acts of Parliament that way – the so-called “Henry VIII” power.
The Brexit secretary David Davis told us we didn’t have to worry about these because they couldn’t be used to change the law without parliament having a say. But even as he was promising us that, his colleagues were proving him wrong. They decided that they can govern by simply ignoring elected MPs and ruling by decree – not so much Henry VIII as Charles I.
Thankfully we have moved on from the times when wars were fought to settle the balance of power between the executive and legislature. But the battle over our democracy has just begun.