On 1 December 2016, the Government published its response to the Strathclyde Review, the inquiry ordered by the then Prime Minister, David Cameron, following the Government’s tax credits defeat in the House of Lords last year. That defeat brought into question the relationship between the House of Commons and the House of Lords, and the ability of the Lords to block Statutory Instruments (“SIs“) (a form of secondary legislation) approved by the Commons. It also laid bare the Conservative Government’s inability to force legislation through the House of Lords, where it lacks a majority. Read our earlier blog on the matter here.
In his report, Lord Strathclyde presented three options for ensuring the primacy of the House of Commons in relation to SIs:
- removing the House of Lords from the procedure of passing SIs altogether;
- codifying, by way of a non-statutory resolution, the restrictions on the House of Lords’ power to deny approval to SIs, which some believe to exist by way of convention; and
- passing primary legislation that would create a new procedure allowing the Lords to delay SIs by inviting the Commons to think again where a disagreement exists but also allowing the Commons to override the Lords and insist on its primacy. This would bring the procedure for secondary legislation more in line with that for primary legislation.
In its response, the Government ruled out options one and two. The first option would deprive SIs of important scrutiny; and “would [not] be in keeping either with the role of the House of Lords or with the value it adds to our parliamentary democracy.”
The second option would be ineffective as there is not a “sufficient consensus in the House of Lords for [the conventions] to be codified in a resolution which would be [meaningful].” The conventions restricting the House of Lords’ involvement in the passing of SIs are not clearly defined; and it is unlikely that a resolution could be made any more prescriptive. In practice, the resolution would do nothing to curb the confusion surrounding the House of Lords’ powers to block SIs that emerged during the tax credits defeat in 2015.
The Government agreed with Lord Strathclyde’s third option; and noted that it would allow the House of Commons to “assert its primacy over secondary legislation” in the same way that it can in relation to primary legislation. According to its response, however, the Government does not intend to legislate on the matter at this time.
The Strathclyde Review and the Government’s response raise a number of interesting questions including:
- Would Lord Strathclyde’s proposed third option would serve to reduce the ability of individuals to challenge SIs?
- Why the Government has refrained from legislating for Lord Strathclyde’s recommendation despite being in favour of it?
Would Lord Strathclyde’s proposed third option would serve to reduce the ability of individuals to challenge SIs?
If the Government sought to curtail the House of Lords’ ability to block SIs, the ability of individuals to challenge those instruments through the political process would arguably be reduced. Individuals may no longer be able to lobby peers, as effectively as they currently do, to amend or reject SIs as MPs (who may be whipped into voting for or against contentious legislation) could override concerns expressed by the House of Lords.
In the 2005 – 2010 Parliament there were approximately 1,500 SIs made each year; and it is possible that, if the Government was able to push SIs through the House of Lords more easily, the use of SIs would increase. This could have implications for the level of political scrutiny to which the Government’s agenda is subject.
Even if the Government chooses not to push for an increase in the use of SIs, the Great Repeal Bill (announced by the Prime Minister at the Conservative Party Conference in October 2016) is expected to grant it significant powers to make secondary legislation in order to domesticate EU legislation when the UK withdraws from the EU.
On the face of it, therefore, the Strathclyde Review’s recommendations could result the Government being able to pass significantly more secondary legislation with substantially less parliamentary oversight.
However, a decision to force an SI through Parliament in the face of opposition from the Lords would be highly political; and Governments tend to prefer not to use such mechanisms to pursue their agenda. The Parliament Acts of 1911 and 1949 (which allow the Commons to force primary legislation through the House of Lords in certain circumstances) have only been used seven times since their respective enactments. It seems likely that even if Lord Strathclyde’s recommendation was legislated for the Government would be cautious about relying on it.
Additionally, the risks of reduced political oversight can be mitigated. While primary legislation is not amenable to judicial review, secondary legislation (and therefore Sis) can be challenged in the courts. Individuals may, therefore, lose their ability to lobby peers as effectively as they currently do, but in practice they may be able to challenge more SIs.
Why the Government has refrained from legislating for Lord Strathclyde’s recommendation despite being in favour of it?
The Government’s decision to hold back on any firm plans to legislate for Lord Strathclyde’s third option may be due the amount of Brexit work that it is currently undertaking.
It is also arguable that the Government considers that the review has already achieved its aim. In its response, the Government made clear that:
“if the House of Lords puts itself in a position where it seeks to vote against SIs approved by the House of Commons, then Lord Strathclyde’s recommendation provides a clear mechanism for the House of Commons to be able to assert its primacy over SIs.“
Put simply, the Government considers that the Commons’ primacy has been asserted by the findings of the Strathclyde Review. The Government has put the House of Lords on notice; if the Lords seek to block an SI, already approved by the House of Commons, the Government will legislate to curb its powers.
Whether the findings of the Strathclyde Review have any bearing on the use of SIs in Government Bills, or the willingness of the House of Lords to challenge SIs, remains to be seen. Nevertheless, the Strathclyde Review is an important reminder of the balances of power between the two Houses of Parliament and the challenges that a Government without a majority in the House of Lords has to overcome in order to negotiate its agenda through Parliament.