Parliament, government and secondary legislation: Lords select committees respond to the Strathclyde Review

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Two House of Lords select committees have this week published reports that are highly critical of the recommendations of the Strathclyde review into the Lords’ powers in relation to secondary legislation, published in December. Mark Elliott summarises the committees’ findings and welcomes calls for a consensual, reflective approach to be taken.

I wrote in December about the Strathclyde Review, which took place at great speed in the autumn against the backdrop of the House of Lords’ refusal to allow the enactment of secondary legislation on tax credits. The Review – set up by the government – recommended stripping the Lords of its power to veto statutory instruments by investing the Commons with statutory authority to override the Lords in the event of opposition to secondary legislation. Two House of Lords select committees – the Constitution Committee and the Delegated Powers and Regulatory Reform Committee – have now published reports that are highly critical of the Strathclyde proposals.

The report of the Constitution Committee

In its report, the Constitution Committee rejects the notion that the tax credits affair amounted to a ‘constitutional crisis’ and says that a ‘single Government defeat … does not seem a sound foundation upon which to base significant and lasting reform’ in this area. Indeed, the committee argues that the Strathclyde Review ended up – as a result of the terms of reference set for it by the Government – asking the ‘wrong questions’ and framing the issues inappropriately. In particular, the committee takes the view that while the Strathclyde Review approaches the matter in terms of the relationship between the two houses of parliament, the underlying, and far more profound, issue concerns the relationship between parliament and the executive:

Delegated legislation is the product of a delegation of power from Parliament to the Government. Parliamentary scrutiny of secondary legislation is the mechanism by which Parliament assures itself that the Government is exercising that delegated authority in an appropriate way, and in a manner which accords with Parliament’s intentions. Yet Parliamentary scrutiny of delegated legislation is less intensive and arguably less effective than its scrutiny of primary legislation. Statutory instruments cannot be amended, so there is little scope or incentive for compromise. Far less time is spent debating delegated legislation than is spent debating primary legislation. And … it is established practice that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation. It is in this context that proposals to weaken the powers of the House of Lords should be considered.

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The Strathclyde recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments

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Lord Norton of Louth argues that the Strathclyde Review recommendations are based on a false premise that there is a convention that the Lords does not reject statutory instruments.  Instead of rushing into wider changes the immediate response to October’s tax credits controversy should be to address the inconsistency in the way Commons financial privilege is recognised in relation to SIs. In the longer term there is a case for a wider review of how both houses deal with secondary legislation.

The report produced by Lord Strathclyde is based on two propositions.  First, that there is a convention that the House of Lords does not vote to reject statutory instruments.  Second, that the problem of the vote on 26 October last year, when the House withheld agreement to the Tax Credits Regulations, is one of failure to comply with that convention.  Both propositions are false, the second necessarily so given that the first has no basis in fact.

There is much misunderstanding of what constitutes a convention.  They are non-legal rules that determine a consistent, indeed invariable, pattern of behaviour.  Those who comply with them do so because they accept that they are, as David Feldman has cogently expressed it, right behaviour.

Conventions do not become such by the words of a particular person, be it Viscount Cranborne in 1945 or Lord Sewel in 1998.  They are not created, but develop.  A convention exists once there is an invariable practice.  That is not the same as standard or usual practice.  If one deviates from it, it is not an invariable practice.  Kenneth Wheare distinguished between conventions and usage.  I think it more appropriate to distinguish between invariable and usual practice.

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Reflections on the Strathclyde Review

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Lord Strathclyde’s report into the House of Lords and secondary legislation, published before Christmas, is to be debated in the Lords today. Ruth Fox and Joel Blackwell from the Hansard Society, which last year published a comprehensive study of the secondary legislation system, respond to Strathclyde and argue that his proposals are no way to undertake reform – an independent inquiry into the legislative process is required.

Following the controversial tax credits regulations vote in the House of Lords last October, the Prime Minister asked Lord Strathclyde to conduct a ‘rapid review’ of Statutory Instruments (SIs) to consider ‘how more certainty and clarity could be brought to their passage through Parliament’ and the primacy of the House of Commons assured. The Strathclyde Review was published before Christmas and will be debated in the Lords this afternoon.

Just over a year ago the Hansard Society published the first comprehensive study of the SI system for nearly 80 years, The Devil is in the Detail: Parliament and Delegated Legislation. In responding to Lord Strathclyde’s report we are thus able to draw on three years of research. Since the start of this new parliamentary session we have also begun to track every SI that is subject to parliamentary scrutiny, enabling us to maintain the most comprehensive and up to date monitor of delegated legislation available each week.

This response to the Strathclyde Review is not a comprehensive analysis of every aspect of the report; rather, it focuses on what we consider to be the key elements of concern, which we hope will inform the debate about it in the House of Lords.

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The Lords, politics and finance

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In the aftermath of Monday’s Lords defeats on tax credit cuts there has been much talk of a ‘constitutional crisis’. In this post Meg Russell argues that whilst Monday’s vote was certainly unusual, the most significant change is the wider political context: that it is a Conservative government on the receiving end of repeated defeats in the Lords. Much like Labour ministers under Blair and Brown, Conservative ministers will need to learn how to handle a relatively assertive House of Lords in which they lack a partisan majority.

A Conservative government seems to be at war with the House of Lords. The Daily Telegraph claims that the Lords is ‘undermining democracy’. What on earth is going on? Has the Lords suddenly lost hold of its senses and begun acting entirely without precedent? To listen to some government supporters, in particular, one would assume so. Ministers have suffered a string of defeats since May 2015 – a total of 19 up to and including this Monday. The most controversial, of course, was the chamber’s decision to delay approval of the tax credits regulations, which has caused some to proclaim a ‘constitutional crisis’– and has subsequently sparked the government to announce a review into the chamber’s policy powers.

There are aspects of Monday’s tax credits vote which were undoubtedly unusual. As explored in an earlier post on the Constitution Unit blog last week, defeats in the Lords on ‘delegated legislation’ (the proposed vehicle for the tax credit changes) are relatively rare. There have been only four previous occasions when such measures were blocked outright by the Lords. None of these (on sanctions against Rhodesia in 1968, the London mayoral elections in 2000, the Manchester ‘supercasino’ in 2007 and access to legal aid in 2012) had such major financial implications as Monday’s vote. This fuelled claims that the Lords was breaking centuries-old convention by not respecting the Commons’ financial primacy. Yet the parent act, the Tax Credits Act 2002, had explicitly given the House of Lords a veto over such orders – even though it is quite possible for explicitly financial legislation (as detailed in this excellent Hansard Society blog) to create orders that require the approval only of the Commons. The well-respected Lords Statutory Instruments Scrutiny Committee had drawn the measure to the attention of the House on the basis of inadequate information about its impacts (a circumstance which the 2006 Joint Committee on Conventions explicitly suggested could merit use of the veto power (para 229)). In fact, the most clearly innovative thing about Monday’s vote was that the Lords did not reject the government’s proposals outright via a ‘fatal’ motion, but only imposed a delay – in the case of  Baroness Meacher’s motion until further information became available.

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The Lords and tax credits: fact and myth

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The power of the House of Lords over ‘delegated legislation’, and financial matters, has become a hot topic due to threats to defeat the government’s planned cuts to tax credits. There have been claims and counterclaims about the conventions governing these matters, and also some fairly wild claims about how the government might retaliate if defeated. Here Meg Russell provides some factual background.

The current question over tax credits

The current argument concerns the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, published on 7 September, which significantly limit people’s eligibility for tax credits. This is a piece of ‘delegated legislation’ (a ‘statutory instrument’) meaning that it is subject to an expedited parliamentary process, much less onerous than the process for passing a bill (see summary here). The government is seeking to use powers delegated to it under the Tax Credits Act 2002, which allows for regular updating of rates and bands. This kind of delegated power is commonplace, to ensure that a new bill is not required every time there are small changes to the implementation of policy. Delegated legislation may be either ‘affirmative’, meaning that it requires the explicit approval of both chambers of parliament, or ‘negative’ meaning that it will pass into law automatically unless one of the chambers objects. This is an affirmative instrument, which was agreed by the Commons on 15 September, and is due for debate in the Lords on Monday. Notably, delegated legislation cannot be amended, only rejected or agreed.

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