Review of the Lords

We are not in a constitutional crisis. For all the strong words generated since the government’s defeat in the Lords on Monday on its proposals on tax credits, the real story is about a clash of principles and practice and a much changed, and unstable, political position in both the Commons and Lords. In this context, the review by Lord Strathclyde, former Leader of the Lords,  could provide a useful clarification of the rules and conventions on the relations between the two House of Parliament, but only as part of a broader rethink by both the Government and the Opposition parties. There are two principles. First, a government which commands a majority in the Commons is entitled to get its business through. The Lords has a delaying role of a year or so for non-financial bills under the Parliament Acts of 1911 and 1949 and no role on designated financial measures. Second, the Lords is a revising chamber, entitled to ask the Commons, in effect the  government, to think again, and that can result in what is known as ping pong as amendments go from one House to the other. For the Conservatives, that is clear. The tax credit proposals were a financial measure and therefore the Lords should not have voted to delay their introduction. But the statutory instrument (SI) or delegated legislation on Monday was not certified as a financial measure. Moreover, unlike bills - which the Lords can amend - SIs can only be approved or rejected. The use of SIs, which often have little scrutiny, has grown substantially in recent years but they are outside the scope of the Parliament Acts. The Liberal Democrat proposal to vote down the measure on Monday, the so-called fatal motion, was rejected by peers, and the two motions approved were delaying measures - though with similar practical effect. The Strathclyde review will examine ‘how to protect the ability of elected governments to secure their business’ and ‘how to secure the decisive role for the elected Commons in relation to its primacy on financial matters and secondary legislation’. There is plenty of scope for clarification here on which measures, including SIs, are certified as financial, where the will of the Commons cannot be challenged. On secondary legislation, there is a strong argument for improving the scrutiny of SIs by both Houses, as proposed by a thorough Hansard Society report last year. There is also a case, in some circumstances, for allowing amendment and an iterative process between the two Houses, though it would take more time. That, in turn, would require a change in the law. Underlying these procedural points are political ones. As we have argued before, the Government needs to take account of the changed political position when proposing legislative measures to implement the spending review. The Conservatives already have a small majority in the Commons, and lost a vote last month on the EU referendum bill. They are also in a minority in the Lords and can be easily outvoted by Labour and the Liberal Democrats. That both requires greater sensitivity in government- among ministers and civil servants- about Parliament, but also has lessons for the Opposition parties. Traditionally, the Lords has operated through self-restraint. Theoretical power has to be tempered. There is the danger of opposition leaders in the Commons using their greater potential power in the Lords as a campaigning tool to frustrate the elected government. Procedural clarification is desirable but it has to be underpinned by a concordat between the parties in the Lords about the balance between the elected government getting its way and peers fulfilling their proper function of scrutiny and, occasionally, of asking the Commons to think again.