Please note that this blog piece was originally published on the Constitution Unit blog on 14 January 2016, and is available here.
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.
The Cranborne doctrine of 1945 developed into the Salisbury convention. The statement of Lord Sewel developed into a convention named after him, even though the convention is only such by departing from the words he used. It is a convention because the consent of the Scottish Parliament is invariably sought when the UK parliament is legislating on measures affecting Scotland.
The House of Lords usually approves statutory instruments, but it is not an invariable practice. The House has asserted its right to reject such instruments and has on occasion exercised it. The House therefore does not regard itself as bound, and has not been bound, by a moral imperative that it should not reject statutory instruments. So long as that is the case, there is no convention. The Joint Committee on Conventions, which reported in 2006, got itself into something of a muddle on this issue – partly because of a failure to define conventions – but it did recognise that no convention was breached if the House defeated a statutory instrument. As it reported at paragraph 228, ‘[t]he Government appear to consider that any defeat of an SI by the Lords is a breach of convention. We disagree.’ It continued:
It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way, (b) the Government can bring the SI forward again immediately, with or without substantive amendment, as described by the Clerk of the Parliaments, and (c) the power to reject SIs gives purpose and leverage to scrutiny by the Joint Committee on SIs, and by the new Lords Committee on the Merits of SIs. The Government’s argument that ‘it is for the Commons as the source of Ministers’ authority, to withhold or grant their endorsement of Ministers’ actions’ is an argument against having a second chamber at all, and we reject it.
The fact that there is no convention is borne out by the words of Lord Strathclyde in the course of asserting that there is. His report states, on page 15:
The convention that the House of Lords should not, or should not regularly, reject SIs is longstanding but has been interpreted in different ways, has not been understood by all, and has never been accepted by some members of the House.
The very wording draws attention to the absence of any agreement on what this supposed convention constitutes and undermines the very claim that there is a convention governing how the House deals with secondary legislation.
The Joint Committee on Conventions, at paragraph 217, quotes the Clerk of the Parliaments as saying ‘[t]here is no generally accepted convention restricting the powers of the Lords on secondary legislation’. It then goes on to state, ‘[t]here was once a loose convention against voting down SIs, but no longer’. There was never a ‘loose convention’ because it is either a convention or it is not, but the key point is that there is no convention. Some members, like Lord Strathclyde, may believe there is, but, for it to be a convention, members generally have to consider themselves bound not to vote down SIs. There is no such acceptance by the House.
There was thus no breach of convention in respect of how the House deals with statutory instruments when it voted to delay implementation of the Tax Credits Regulations. That was not the problem. The problem derives from the fact that the House exercised its power in respect of a statutory instrument that engaged the financial privilege of the Commons. The key section of Lord Strathclyde’s report is to be found on pages 21 and 22 covering financial privilege. That should have been the focus of his report. There is nothing to stop the House of Lords developing procedures particular to delegated legislation that cover financial privilege.
Indeed, Lord Strathclyde makes the point that there is already a way of recognising Commons financial privilege in relation to SIs. As he writes, ‘[i]t is on the basis of the inevitable financial nature of the instruments made under particular powers that those powers are sometimes made subject to Commons-only procedures.’ The Tax Credit Regulations, as he notes, show there is some inconsistency in the way Commons-only procedures are provided for in bills. Given that, he thinks it would be sensible for the government to carry out a review of the principles on which it is appropriate for powers with financial implications to be made subject to Commons-only procedures. As he goes on to say, ‘[i]t would then be possible, in consultation perhaps with the Procedure Committee of the House of Commons, to develop a protocol to apply in the drafting of all Bills containing delegated legislation’.
That should be the immediate response to what happened on the draft Tax Credits Regulations. There are dangers of rushing into wider changes to how the Lords deals with statutory instruments on the basis of a flawed interpretation of what happened in October.
There is a case for reviewing the powers of the House, but if the powers in respect of delegated legislation are to be restricted, they should at least be analogous to those provided for in the Parliament Acts in respect of primary legislation. Lord Strathclyde’s recommendation in favour of option 3 claims on page 18 it is, but then admits on page 20 that it is not, since there would be no suspensory veto. If we are to go down the route recommended by Lord Strathclyde, there needs to be something else built into the procedure to ensure that the reasons for objecting to an SI are taken seriously.
In any event, the Strathclyde Review is not the first to address the powers of the Lords in respect of secondary legislation. We have had recommendations for reform from the Royal Commission on the Reform of the House of Lords (the Wakeham Commission) and the Goodlad Committee. More importantly, the Hansard Society has produced a thoughtful report on the subject, The Devil is in the Detail: Parliament and Delegated Legislation. That proposes overhauling the whole process by which Parliament scrutinises delegated legislation, acknowledging the limitations of the process in the House of Commons.
In short, while the Strathclyde Review has come up with some stimulating proposals, it derives from a false premise and comes up with recommendations not geared to the mischief that prompted the inquiry. In the short term, there is a case for acting in respect of SIs that engage the Commons supremacy in tax and spending. In the longer term, there is a case for a substantial review of how parliament as a whole reviews secondary legislation. The present system does not work as well as it could and should. The principal problem, though, does not lie with the House of Lords.
This post is an expanded version of the speech Lord Norton delivered in the House of Lords during yesterday’s debate.
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