On 2 February, I posted an analysis of the financial privilege on the blog of the UK Constitutional Law Group, and it was cross-posted by the Constitution Unit at University College London. This post was based on an analysis of written authorities and contested recent practice in Parliament concerning the financial privilege. It circulated widely and was the subject of considerable commentary, some critical. The Clerk of the Commons and Clerk of Legislation have also since published a briefing note and chart (the “Clerks’ Note”) that sheds important new light on the process by which the privilege is invoked in the Commons. In light of the Clerk’s Note, further feedback and additional research, I am issuing this note to clarify the original analysis, vary it in part, and respond to some criticisms.
Is the privilege invoked opportunistically? Is it nonetheless a concern?
The Clerks’ Note shows that the process by which the financial privilege is raised is non-partisan, and is therefore not invoked opportunistically by the Government. The Clerk of Legislation (who is independent) will designate Lords amendments having financial implications, and this matter is submitted to the Speaker to draw the issue to the House’s attention when the Lords amendments are introduced for consideration. Should the Commons choose to agree the amendments, they will ‘waive’ the privilege, and if they do not agree them, they ordinarily offer (in the Reasons Committee) the privilege as the reason for disagreement (even when there has been substantive debate on the matter and the actual reason is a policy disagreement).
The upshot of this is that under the authority of the Speaker, the Clerks will decide whether the financial privilege is engaged by asking whether a bill has ‘any financial implications.’ This test that is used is the ‘wide reading’ that I criticised in my original post. Subject to the important note below about the existence of precedents, that critique stands. The Commons may choose to waive the privilege in specific cases, and that is a political decision. Its previous forbearance seems to have made the system work to the acceptance of both Houses. Its more recent approach calls the whole procedure into question.
The question of precedents: is the financial privilege being relied upon to disagree Lords amendments more often in recent times?
The Clerks’ Note was accompanied by a chart setting out a range of recent precedents in which financial privilege was engaged, in many cases waived, but in a number of cases not waived. I drew attention in my original post that there had been a recent revival in the reliance upon privilege. The reaction on the Lords in this and earlier recent cases, and reports of the Labour Party seeking legal advice in respect of this particular instance, suggests great unease about this. In a note from the Clerk of the Parliaments prepared for the Leader of the House of Lords and filed with the House of Lords library on 10 February 2009, it is reported that between 2000-2008, the privilege was designated as engaged in respect of 335 Lords amendments (with 154 of these in the 2007-2008 period alone). Yet between 2009 and 2012, there have been (according to the Clerks’ Note) 266 Lords amendments where the financial privilege was in play. Between 2000-2008 privilege was offered as a reason for rejecting amendments in 42 cases, whereas between 2009-2012 it was offered in 43 cases. Further, in my own search of all of Hansard (see here and also here) since 1900 for references to ‘financial privilege’ (an imperfect proxy but relevant to where its use has been discussed in Parliament), 83 hits are returned between 1900-2000 (mostly condensed into the years between 1960-2000), and 54 are returned from 2000-2010. The claim that there has been a surge therefore has clear support. The causes for this may be diverse and the recent trend might be too brief to assert long-term implications, but it remains an important snapshot.
On the other hand, having analysed many of the debates in those pre-2000 cases, I have confirmed that the privilege was invoked reasonably consistently, if much more sparingly, mostly from the 1960s onwards, in respect of a range of social welfare legislation. This was true of bills relating to social security and pensions (Social Security Pensions Bill (1975), and Social Security Bill (1989)), housing, education (Education (Grants and Awards) Bill (1984)), health care reorganization (National Health Service Reorganisation Bill (1973), dental charges (National Health and Medicines Bill (1988)), and a number of other similar bills. I have analysed the debates in at least fifteen such precedents (representing the substantial bulk of the relevant total). I frankly concede that they for the most part indicate that the Lords have, in that period, and with a few isolated protests, accepted the claim of privilege in respect of bills relating to expenditure on social welfare policy. This is a material addition to my earlier post, and it supports the view that the reliance on the privilege in disagreeing Lords amendments to the Welfare Reform Bill is not a strong break with past (if sporadic) practice. The key present issue is the frequency of reliance upon the privilege in disagreeing to Lords amendments, and whether the Commons should revise its practice in light of the constitutional policy concerns raised in my original post and by others.
Will this reliance on the privilege adversely affect the Lords’ scrutiny and revision of important statutes?
Some have argued in correspondence that the Lords enjoy the right to offer amendments that infringe the privilege, and the Commons can and normally does waive privilege when agreeing them. So the Lords need fear neither constitutional impropriety nor irrelevance when offering amendments on privileged matters.
Yet the problem remains that if proposed Lords amendments are opposed by the Government sponsoring the bill, then any debate may have an air of futility. The more frequently the privilege is invoked as a reason for disagreeing Lords amendments, the more such fears would be well-founded. Related concerns have been raised by peers on a few different occasions: in addition to some comments noted in my first post, see e.g. HL Deb, Vol 712, c.26-29 (Lord Jenkin); HC Deb, Vol. 463, c440 (Question of George Young to Harriet Harman); HL Deb, Vol.694, c708-9 (Lord Oakshotte); HL Deb, Vol 705, c1292 (Baroness Miller); and esp. HL Deb, Vol 734, c160-161 (Baroness Thomas), though contrast HL Deb, Vol 734, c161 (Baroness Hollis, defending the role of debate where privilege engaged). Further, if the Lords wish to assert their (established) right to reject the entire bill, then the way in which that right would need to be exercised may itself stifle debate. After approving the bill (with amendments) at the Third Reading, it is difficult and perhaps even impossible for the Lords to reject the bill in its entirety at the ping-pong stage. The option to reject a bill would, it seems, ordinarily need to be exercised before a series of amendments can be sent to the Commons for consideration.
Is the privilege being ‘abused’ in this case?
It is not in the following two senses: it is not invoked opportunistically by the Government or the Speaker, and there are a range of precedents supporting this type of use of the privilege both recently and from the mists of time. However, the reaction in the Lords and press suggest that this is more than business as usual. It is more plausible to say that any constitutional abuse lies in what appears to be the more frequent refusal to waive the privilege, the possibility that the financial privilege has extended well beyond its initial purpose, and that the Commons’ (unquestioned) right to define the scope of the privilege is liable to be extended very widely and in an unchecked manner.
The recourses open to the Lords
I originally suggested two recourses were open, but this claim needs revision.
- The Lords may adopt a resolution stating that (i) this not be regarded as a precedent, or (ii) protesting the application of the privilege in this case: In light of the twentieth century precedents, both of these options, though available, will seem ineffective. The option of a resolution may still stand, in my view, but as a way to protest the general trend identified above and its constitutional implications.
- Rejection of the entire bill: The Welfare Reform Bill has been through the Third Reading in the Lords and so rejecting this particular bill is apparently not a realistic option. It remains an option for other bills.
- Amendments in lieu of amendments: The Clerks’ Note clarifies an additional recourse not mentioned in my initial post, namely that the Lords could offer amendments in lieu of their initial amendments when the Commons’ disagreement is communicated. Yet by convention the Lords will not offer amendments that ‘invite the same response.’ There is thus an option to continue the dialogue in this fashion, and the utility of such dialogue would depend on how cautiously the convention of ‘not inviting the same response’ is observed or interpreted by the Lords. There have been objections even by peers whose amendments have been rebuffed on privilege grounds to trying to use this option to reassert an amendment which is essentially a matter of privilege. Yet the Clerks’ Note shows that this option has been pursued in recent years, the precise form of these amendments not being known to me.
Erskine May – 23rd and 24th Edition
It has been pointed out that my original post referenced the 23rd edition of EM, when in fact the 24th was published in June 2011. This was all well known at the time of writing – the new edition was neither available online nor received by the university library. I relied also on an up to date Halsbury’s for all key claims, and shortly thereafter acquired the 24th edition and vetted all claims.
Dr Jeff King
Senior Lecturer in the Faculty of Laws, University College London