There are few who are as interested in and know as much about Parliamentary procedures and Constitutional change within the United Kingdom as the delightfully urbane Thomas Galbraith, 2nd Baron Strathclyde. Perhaps in respect of his scholarship, Prime Minister David Cameron asked him to prepare a review on secondary legislation and the relationship between the House of Lords (HoL) and the House of Commons (HoC).
The Rt Hon the Lord Strathclyde explains that Acts of Parliament often include a power to add or revise a detail, to fast track changes. When an Act is passed, these are called Statutory Instruments (SIs). These often deal with minor changes in the law but occasionally they can also be controversial as happened in the recent row over tax credits. Over the time, it has become an accepted practice that the HoL has a better developed scrutiny process than the HoC when it comes to SIs. Since 1946, the House of Lords and the House of Commons have had a veto power over SIs. The HoL, for its part, has used this veto extremely rarely and in 1968 even agreed on a convention not to use it. Strathclyde says: “The Lords’ convention on SIs has been fraying for some years and the combination of less collective memory and a misunderstanding of important constitutional principles have made it imperative that we understand better the expectations of both the Houses. In the last 15 years, the veto has only been used on four occasions, for low level issues such as the Casino Legislation.”
David Cameron was appalled in October last year when the House of Lords declined to approve the regulations on Tax Credits with a majority of 310 against and only 99 in favour. The SI was rejected on the basis that the Exchequer was asking the people on in-work benefits for too much too quickly. The tax credit defeat was the first time ever that the HoL has used the veto and blocked an SI whose main purpose is the financial and tax raising powers of the government. Strathclyde believes that since hereditary peers were limited by Labour in 1999, peers are less fearful of reform and therefore more confident, assertive and outspoken. Strathclyde comments this was “a nakedly political act that went straight to the heart of the government policy”. As shock reverberated through Westminster, the Prime Minister invited Strathclyde to report how to avoid this happening in the future and to give the elected House (HoC) the final say.
Strathclyde chose his three advisers for their expertise, Jaquy Sharpe, the retired Clerk of HoC, the brilliant Sir Michael Pownall, the retired Clerk of the Parliaments in the HoL and Sir Stephen Laws, former First Parliamentary Counsel Chief and Law Drafter. The team hurried to publish the review on 17 December 2015. Three options were put forward. First was to remove the HoL from SI procedure altogether. Second was to retain the present role of the HoL in relation to SIs — to unambiguously set out the restrictions on how HoL powers to withhold approval or to annul should be exercised in practice and to revert to a position where the veto is left unused. The third and favoured recommendation is of creating a new procedure — set out in the statute — allowing the Lords to invite the Commons to think again when a disagreement exists and insist on its primacy. Strathclyde believes that this would enhance the practical power of the HoC.
So far, the unofficial feedback has been positive about the recommendations but it would require an amendment of the 1946 Act. Alternatively, the House of Commons Procedure Committee is examining a non-legislative way of implementation such as reconstructing the Act to incorporate a response from each House. The Prime Minister is expected to respond latest in March.