Thursday 17 December 2015

A brief note on the Strathclyde Review ~ a major constitutional change is proposed

A wolf in sheep's clothing
The Tax Credits row (earlier post) between the House of Lords led to the Prime Minister setting up a review, under the Chairmanship of Lord Strathclyde, to consider the powers of the House of Lords in relation to statutory instruments.  The government had claimed that cuts to tax credits were crucial to its plans for public finances but the cuts were abandoned in the Autumn Statement.

See the Strathclyde review

In October, the House of Lords voted on the Tax Credits (Income Thresholds and Determination of Rates)(Amendment) Regulations 2015.  The Lords did not approve the legislation  but neither did they agree on a so-called "Fatal Motion" to kill it off.  Their votes imposed delay.  As far as legal rights are concerned, the Lords acted within their powers but it is claimed that a constitutional convention giving primacy to the House of Commons in financial matters was breached.

The Strathclyde Review was conducted by hereditary peer Thomas Galloway Dunlop du Roy de Blicquy Galbraith (2nd Baron Strathclyde) along with Jacqy Sharpe (former Clerk of Legislation in the House of Commons and Commons Clerk to the Joint Committee on Conventions in 2006), Sir Stephen Laws (former First Parliamentary Counsel) and Sir Michael Pownall (former Clerk of the Parliaments),

The review offers three options
for reform but makes it clear that the preferred option is to amend the law so that the Lords have a limited power to ask the House of Commons to "think again".  The Lords could vote against a draft instrument, send it back to the Commons and it could then be voted into law and, no doubt, usually would be.  The proposal is NOT limited to financial matters but would apply to any draft statutory instrument.

The report states:

"A third option would be to provide the Lords with a new means for asking the House of Commons to think again with regards to secondary legislation. This option could make the ability of the House of Lords to deny approval to a draft SI (or, in some cases, the SI itself), or to resolve that an instrument should be annulled, better fit the recognised role of the House of Lords in relation to legislation as a revising chamber.  This could be achieved by allowing the Commons to override a vote by the House of Lords to reject an instrument.  This would bring the procedure for statutory instruments more into line with the existing rule for statutes under the Parliament  Acts 1911 & 1949 and the rule for the approval of international treaties under section 20 of the Constitutional Reform and Governance Act 2010."

A major problem with this lies in the extensive use being made of statutory instruments to introduce important legal and policy changes. Such legislation does not receive the more detailed attention given by Parliament to Bills.  Statutory Instruments (SI) number into the thousands each year but it is rare that serious problems arise in practice.  On only 5 occasions since 1968 has the Lords actually passed a fatal motion relating to SIs - (detail is in the Strathclyde report).

Interestingly, Strathclyde offers this comment:

" ... in order to mitigate against excessive use of the new process which I have proposed under option 3, I believe it would be appropriate for the Government to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument."

This looks like a very forlorn and somewhat pious hope!

The Lords already have limited powers in relation to most primary legislation since, if necessary, the Parliament Acts 1911-49 may be applied.  Given the present day importance of secondary legislation, this proposal to limit the powers of the Lords will result in significant enhancement of executive power.  As such, it is a major constitutional reform and not a mere adjustment to parliamentary process.  It is a constitutional wolf in sheep's clothing. 

Additional links:

See also Public Law for Everyone 17th December 2015 - The House of Lords and secondary legislation: Initial thoughts on the Strathclyde Review.

Parliament - Statutory Instruments

This House of Commons Library briefing paper sets out the conventions on the relationship between the two Houses of Parliament and their origins. On 4 November 2015 the Leader of the House of Lords announced the terms of reference of the Government's review into how to secure the decisive role of the elected House of Commons in the passage of legislation. This briefing paper also sets out the background to the review.

Delegated legislation in the House of Lords since 2000

1 comment:

  1. I beg to disagree. It is true that secondary legislation has become more prevalent since the war - that is because of the greater amount of public policy legislation that modern governments are forced to enact. Had secondary legislation been so important in 1911 or 1949, no doubt it would have been dealt with in those acts in line with the position on primary legislation. It seems odd that secondary legislation should have a more privileged position than primary legislation. Strathclyde suggests a way forward that is reasonable and simple - lets do that, and ensure the primacy of the elected house.