Lords in opposition to government policy

On Monday, the House of Lords will debate a fatal motion on proposed changes to tax credits. A great deal of commentary has attempted to assess the constitutional propriety of this motion. Some argue that the measures were contained in the Conservative manifesto and should therefore be exempt from interference in the Lords, under a protocol known as the Salisbury Convention. Separately, the measure also brings up questions about the conventions on how the Lords treats finance measures and how it treats secondary legislation. Conventions are a tricky area of our constitution. In this case it is a parliamentary convention as such, interpretation and precedent can have a big effect. This Wednesday we had a foretaste of how Peers parts of Monday’s debate might go on one particular issue: how clearly a manifesto had to be to cover future legislation. At stake were subsidies for renewable energy, with proposed government legislation bringing forward the closure of one scheme – the Renewable Obligation – from March 2017 to March 2016. This, argued the Minister, implemented a manifesto commitment to “end any new public subsidy” for onshore wind. The opposition disagreed, arguing that the Renewable Obligation represented an old, rather than a new subsidy. Baroness Worthington, speaking for Labour, argued the convention did not apply: “Manifestos are brief, do not contain detail and therefore are open to interpretation, and opinion therefore plays an important role. We are not doing anything that we believe contravenes the Salisbury convention.” When Lord Foulkes supported this position, Viscount Ridley accused him of minting a new convention, “the Foulkes convention”, under which elections would be preceded by “a negotiation between lawyers representing both parties to get the exact wording of manifestos agreed”, otherwise “nothing will be able to get through the House of Lords”. The government was defeated by 242 to 190 votes. On its own, the result may not amount to much –Wednesday’s decision related to primary legislation, where ultimately the Lords can delay but not overrule the Commons. As such, Labour could afford to argue over the interpretation of Salisbury (the Liberal Democrats have effectively rejected the convention since 2005). On Monday, peers will be able to veto the secondary legislation containing the tax credit changes, killing it off. Monday’s vote on tax credits is guaranteed to receive greater coverage and will have a far greater impact on both the conventions of the Lords and the relationship between the government and peers, but Wednesday’s vote provided an interesting foretaste. Certainly for the government, keen to impress upon peers the consequences of a fatal motion on Monday, this little-noticed vote as “a very serious pivotal moment for the House of Lords”.