Kenneth Morgan on the government’s engineering of a phoney constitutional crisis following the Lords tax credits defeat
Last Wednesday evening, we were told – via national media rather than Parliament – that Conservative Peer and former leader of the Lords, Lord Strathclyde would be heading up a ‘rapid review’ on the ‘constitutional crisis’ created by last week’s votes on tax credits. The morning after, Chris Grayling, the non-lawyer Lord Chancellor, told the Commons (apparently with a straight face) that ‘a rapid review could not be rushed’. It was a response worthy of the late, great Yogi Berra.
Either way, the ‘review’, far from providing an objective analysis will consist entirely of partisan Tories whose minds have already been made up. It is like having the licensing laws reviewed by a group of brewers. We may however, see a less troublesome outcome than other crude suggestions reported by shell-shocked Conservative-supporting newspapers. We will be spared a tsunami of 100-150 more Tory Peers. We will avoid the Lords’ revising and amending powers being stripped away. We will escape unaccountable unicameral government.
Nevertheless, the alleged basis for the review is absurd.
On procedural grounds, the clerks of both Houses have long agreed that the Lords have every constitutional right to reject statutory instruments. It is legislation passed by the Commons and designated ‘money bills’ that enjoy financial privilege. Typical of the government’s tactics therefore, that they tried to smuggle unfair tax credit reductions through in the way they did rather than have the policy exposed in the Commons. And as everyone knows, the famous Salisbury-Addison convention does not apply here since the Conservative manifesto made no reference to the proposal. In fact, David Cameron declared categorically that it would not happen.
It is also bogus to say the Lords’ actions flout the 1911 Parliament Act, as William Hague said in The Daily Telegraph. He was also wrong about Lloyd George and could usefully consult his wife’s more accurate book on the subject. Herbert Asquith, the Prime Minister at the time, made clear that the Act referred to ‘all matters of pure finance’ by which he meant new proposals to raise taxes and to authorize expenditure. Not simply asking the government to react on any measure concerning finance, since that could cover almost every item of parliamentary business.
The Parliament Act was carried through after the December 1910 general election, where the Liberals won a Commons majority of 124 in favour of reducing Lords powers. The King subsequently agreed to creating sufficient peers, if necessary, to ensure the people’s wishes were duly accepted by the then all-hereditary House. A rather more momentous occasion than one setback on an item of secondary legislation.
Since 1911, as Lord Lisvane and Professor Meg Russell, amongst others, have written, the position on financial privilege and the definition of money measures to which it has applied, has been exceptionally vague. It was raised over Peers multiple amendments to the 2011 Welfare Reform Bill in the way that governments usually do – on a wing and prayer. That is how much of our unwritten constitution works. Osborne’s pronouncements on tax credits were like that – hit or miss, no historical evidence, and much bluster to cover up for the lack of argument. The Lords leader meanwhile, was all at sea, even on the distinction between ‘fatal’ and ‘non-fatal’ amendments, when she appeared to contradict the view of the Lords clerks.
The government lost on the Hollis and Meacher amendments not because the Lords acted improperly. But because the two Baronesses who moved them had by far the stronger arguments, listened to thoughtfully by intelligent peers without any shouting down. And because the poverty of the government’s case was clear for all to see.
Scribes on some of the more progressive newspapers and journals, including The Guardian and The New Statesman, have used our victory to attack the Lords, adopting the usual clichés. In fact, we correctly played our constitutional role in questioning the government’s case and asking Ministers to think again.
Across the country, working families who faced being told before Christmas that they were about to lose £1,300 or more next year, have endorsed what we did. If this was a crisis at all, it was a humanitarian one and those of us who successfully challenged Osborne and Cameron should take pride in our response.
Professor Lord Kenneth Morgan is a Labour Peer and the author of numerous books on British politics and twentieth century history
Published 2nd November 2015