The Lords’ amendments to a government financial statutory instrument are an attempted power grab that drives a coach and horses through a vital constitutional doctrine
The Lords’ refusal yesterday evening (26.10.2015) to approve the government’s statutory instrument incorporating cuts to tax credits was gloriously right as to the substance, but catastrophically wrong constitutionally. Part of the price paid for continued tolerance of a huge, bloated, unelected, expensive house of lords, its members mostly appointed by the party bosses over the years, is the hallowed convention, observed for more than 100 years, and indeed reflected in resolutions going back to the 1670s* and partially incorporated in statute law, that the Lords may not frustrate, amend or delay house of commons decisions on financial or budgetary matters, however unjust and reactionary they might be. Because the government’s proposal in the Lords was not technically a “money bill” but only a statutory instrument proposed to be made under an existing Act, a majority in the Lords argued that the convention and law restricting the Lords’ powers didn’t apply and that they were free to reject or delay it, an unconvincing play on words which precipitates a major constitutional crisis. It constitutes a rash grab for new powers by the unelected second chamber which progressive people in all parties ought to reject.
This presents Cameron and Osborne with two problems, neither of them insoluble.
First, they have to decide how to rescue the tax credit cuts, which they will unquestionably do, if necessary with some largely cosmetic new measures in next month’s Autumn Statement to reduce the impact on those who will be hardest hit by them. They can’t afford, and don’t need, to accept the conditions which the Lords have tried to impose on this key Osborne policy.
Secondly, the government has to decide how to bring the mutinous house of lords to heel — which I have no doubt they will also do. They can legislate to codify (and perhaps further reduce) the powers of the Lords in a new law which can if necessary be put on the statute book without the approval of the house of lords by using the Parliament Acts 2011 and 1949. In practice the Lords would probably acquiesce in such a law, making it unnecessary to use the Parliament Acts. Or, much less likely, they could reintroduce proposals for a mainly elected house of lords, in which they could expect to win an overall Tory majority in current political circumstances. They are most unlikely to carry out their threat to stuff the Lords, already more than 800 members strong, with the appointment of perhaps 150 new Tory peers to give themselves a majority, while at the same time legislating to reduce the size of the much smaller house of commons from 650 to 600, especially when the immediate purpose of such a drastic solution would patently be to get through Osborne’s increasingly unpopular and discredited tax credit cuts. An Act to spell out the limits of the Lords’ powers regarding the government’s financial measures, whether in primary or secondary legislation, under the existing
doctrine would obviously be in the interests of any future progressive UK government and would deserve unqualified Labour support.
*The constitutional position and the established primacy and privileges of the lower house in financial matters going back more than 340 years are described with exemplary clarity by Lord Mackay, the distinguished former Lord Chancellor (1987–1997), in yesterday’s debate — see the House of Lords Hansard, 26 October 2015, column 997 ff.
Note: This post is an edited and expanded version of a comment posted on an article on LabourList last night.