The House of Lords and Constitutional Crises

Last night, the House of Lords performed the function assigned to it by the British Constitution. As the appointed second chamber of the British Parliament, they amended a piece of legislation in line with their scrutinising role, sending it back to the elected House of Commons for further consideration in light of new information. They didn’t block the measure, nor did they destroy it.

Or, depending on your politics and your spin doctor, the House of Lords just posed an unprecedented challenge to the balance of powers within the Constitution that hasn’t been seen for over 100 years, and one that’ll have to be punished.

So which is it? Does it really matter? Is posing rhetorical questions to oneself a lazy and hackneyed introductory device?

The question of politics here was the government’s proposal to cut tax credits, a social security payment designed for people in work. For certain people – a single parent of multiple children, the self-employed, those without guaranteed hours, or people living in an area with a particularly high cost of living, among others – the minimum wage isn’t enough to ensure they can actually live. Tax credits top up that income.

In their fetishisation of austerity, though, the Conservatives decided that these payments were costing too much. Some civil servant realised that tax credit payments actually amounted to an awful lot, and cutting down on them could save quite a lot of money. And so, George Osborne, Chancellor of the Exchequer, manager of Britain’s pursestrings, decided that taking an average of £1,300 from 3 million of the poorest people in Britain was a good idea. Instead of, say, raising corporation tax, or indeed forcing corporations to actually pay it, or even realising that austerity is an ideologically motivated, economically unnecessary choice.

The ensuing controversy led to the House of Lords amending the instrument by which these changes were to be achieved. After all, the Conservatives have a majority in the House of Commons, meaning they can essentially introduce and pass any piece of legislation they want. However, for legislation to become law, it also has to pass through the House of Lords, where the Conservatives don’t have a majority for the first time in, well, ever.

It didn’t pass, and so didn’t become law, instead being sent back to the House of Commons with some amendments attached. The government is now required to conduct an independent inquiry into the impact of the proposed cuts, and introduce some form of transitional measures.

The politics of that is all well and good, and better dealt with by others. My position can probably be parsed by the careful, attentive reader, but a discussion of the politics of austerity isn’t really my forte. I don’t know nearly enough about witch doctoring or snake oil sales economics to make any sort of useful contribution.

But the immediate Conservative reaction is another matter. George Osborne, among other Conservative figures, decried the Lords as overstepping their Constitutional role, and today indications have come from the office of the Prime Minister that the government will be pursuing some measures to prevent the situation recurring. Various peers have, however, claimed they acted perfectly legitimately.

The problem arises because of the nature of the British Constitution. As much as it should, Britain doesn’t have a single big sheet of paper grandly declaring itself the superior law. Instead, the British Constitution is contained in a scattered mess of various bits and pieces which, taken as a whole, make up the field of British Constitutional Law. Some of these are important legal cases, some are pieces of legislation, and others are things called Conventions.

Conventions are… odd. And somehow curiously very British, reserved and polite and incomprehensible and obtuse and idiotic. An explanation of them might be that they’re unwritten rules that everyone follows just because that’s how things are done. So they’re not rules, because they’re not written down and they don’t actually have to be followed, but everyone follows them anyway because, Good Lord, where would we be then? It’d practically be France.

They’re social rules that everyone follows because there’s no other way of keeping an unwritten Constitution functioning. As a result, a key point in something being a Constitutional Convention is that everyone involved has to believe that the social rule is obligatory for this purpose. So, for example, there’s no actual rule stating that the Prime Minister comes from the party with the most MPs in the House of Commons, or that the Queen will give her assent to everything passed by Parliament, but it’s understood that that’s what happens.

The Conventions that are particularly exercising Osborne date from quite a while ago. About a hundred years back, the first elements of the British social security system were passed through the House of Commons under a newly elected Liberal government. The government were looking to raise taxes in order to introduce things like sickness pay for workers. The House of Lords, made up of hereditary, well, Lords, rejected this on the basis that they were the ones that would have to pay for it and they didn’t want to.

This went on for a while, with the elected chamber passing the budgets to raise taxes and the chamber of hereditary peers rejecting it because they liked having money. After some threats and some legislation, the Lords backed down.

The stramash crystallised what was probably a pre-existing Convention. Since the House of Commons is elected, and theoretically represents the will of the electorate, it was decided that any ‘money bill’ – that is, a piece of legislation on financial matters – should not be interfered with by the Lords. This prevents a government being elected to pursue various policies and then being unable to do so because they can’t get any money.

Along similar lines, if a government promises something in an election manifesto which it then seeks to make law, the Lords won’t interfere. Again, the government can be said to have a democratic mandate to introduce these policies, which it’s considered inappropriate for the unelected Lords to oppose.

Which brings us to last night. Osborne claims that in amending the legislation, the Lords were breaching those Conventions, as it was a ‘money bill’ dealing with taxation and that it was a measure making up a part of the Conservative’s manifesto commitment to ‘securing a balanced budget’. That latter one is a real stretch and can probably be discounted immediately. Suggesting that such a vague phrase encompasses specific legislation is hopeful, to say the least.

The Lords’ response to the first one can be seen in the debates (Baroness Hollis, column 991), and relies on the way law is made in the UK. Generally, legislation can be divided into primary and secondary. Primary legislation is composed of Bills, which when passed, become Acts. Major legal changes – the Human Rights Act, various Immigration Acts, the Scotland Act – are achieved through primary legislation. The procedure for a Bill to be passed is fairly complicated, but once it is, Parliamentary Sovereignty ensures that the resulting Act is supreme domestic law.

The problem with this is that a lot of stuff government does is too technical, fiddly, or fast-changing to be dealt with in Bills and Acts. The common way around this is for an Act to be passed giving broad statements for an area of policy and to give a minister powers to adopt more detailed secondary rules to regulate practice at a later date. These secondary rules can be adopted and changed far more quickly and easily, and allow for flexibility in policy making.

For example, section 95, subsection 1 of the Immigration and Asylum Act 1999 says “The Secretary of State may provide, or arrange for the provision of, support for (a) asylum seekers…”. This vague statement is fleshed out by s95(12): “Schedule 8 gives the Secretary of State power to make regulations supplementing this section”. Basically, the detailed rules on material support for asylum seekers are laid out in secondary legislation (in this case the Asylum Support Regulations 2000, as amended).

This was the approach the government pursued with the tax credit cuts, attempting to introduce the cuts via the elegantly named Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015. And it’s this approach on which the Lord’s objections rest.

That is, the legislation was emphatically not a money bill. While it was debatable whether or not it was to do with financial matters (since some argued that it was social security, while it can be said to be a matter of revenues), it was secondary rather than primary legislation. It was a statutory instrument, the method by which most of the actual business of government in the UK is done.

The role of the House of Lords in the British Constitution is one of scrutiny, a check on the otherwise untrammelled power of the House of Commons. Their point is to ensure that the government is doing its job properly, in line with the Constitution and the rule of law. The Lords don’t consider some limited pieces of primary legislation due to their importance for the functioning of the system of British government. If they were barred from even considering any legislation that involved financial matters, though, they wouldn’t be able to do anything at all. Everything that government does involves money to some extent.

Under Osborne’s logic, closing down the court system and replacing it with dunking the accused in a pond to see if she floats shouldn’t be subject to challenge by the House of Lords because it would save a shitload of money. That it would be wildly illegal and contrary to the Constitution wouldn’t matter.

Clearly this is a ridiculous example, but the point remains. The reason for the House of Lords still existing is to act as a check on power, while Osborne is arguing that he shouldn’t have any limits placed on him.

Not that the House of Lords is a necessarily good thing. As part of a fuller programme of electoral reform, the House of Lords should be turned into an elected chamber. But in this instance, they’re just doing their job, and any attempt to argue otherwise doesn’t understand the balance of functions in the Constitution.

Or they’re just trying to cover their arses; it’s both interesting and notable that the only ones suggesting that the Lords acted unconstitutionally are those with skin in the game. Osborne suffered a humiliating defeat so tried to spin attention away from divisions in the Conservative ranks by blaming the Lords and turning the debate into one on constitutionalism.

That’s why it potentially matters, as well. There have been tentative indications that the government will do something to prevent this happening again by reforming the Lords. The prospect of George Osborne as Prime Minister in 2019 donning a Palpatine-esque robe and declaring himself Emperor is still far-fetched, but could be brought incrementally closer if the scrutinising power of the Lords is reduced. Deliberate misunderstandings of constitutional roles for political gain put the whole delicate balance of power and the rule of law in an unwritten constitution at risk.

On the other hand, Osborne can totally do the whole shooting lightning out of of his fingertips thing, so the Lords might want to take his threats seriously.

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