Praise the Lords?

     Yesterday marked a truly dramatic moment in modern British politics as the House of Lords voted to delay Prime Minister David Cameron’s government from cutting over £4.4 billion of tax credits to low income families and individuals, which are part of an overall £12 billion deficit reduction plan by Chancellor of the Exchequer George Osborne.

     It’s remarkable because the Lords, the unelected upper house of the UK Parliament, usually does not take a strong stand in the way of legislation supported by the elected government and the lower house of Parliament, the House of Commons. Indeed, the Parliament Acts of 1911 and 1949 stripped the right of Lords to veto “money” bills, and placed a maximum of two years (reduced to one year by the 1949 Act) for the Lords to delay other public bills coming before it. These acts asserted the near-supremacy of the Commons and limited the Lords to providing scrutiny to legislation.

     However, this isn’t to say that the Lords is entirely meaningless, for their ability to scrutinize, hold up, or turn back legislation to the Commons (even if only temporary) is can used as a check on the government and force it to rethink its proposals. This is what happened yesterday during a highly charged and emotional debate in a packed Lords chamber on whether to either allow the cuts to go through, delay them, or block them entirely.

     In the upper chamber, the Conservative Party – which has a majority of 12 in the Commons and therefore forms the UK Government – has the biggest number of peers at 249, but is faced with the combined numbers of 213 Labour and 112 Liberal Democrat peers, along with hundreds of other peers among smaller parties, independent crossbenchers, non-affiliated members, and Church of England bishops.

     Anticipating a possible defeat on the matter of tax credits, the government and people on its behalf warned against any move to delay or block the reductions, saying that along with contravening the Parliament Acts, this would break a 300 year old convention of the Lords not to interfere with finance bills and spark a major constitutional crisis. Professor Vernon Bogdanor, a leading constitutional scholar who was David Cameron’s tutor at Oxford, told the BBC:

     “These rules date back to the end of the seventeenth century and they say that the House of Commons had exclusive financial privilege – that is the House of Lords should not interfere with the financial privilege of the Commons or the power of the government.”

     He further stated that there was “no source” from which the Lords could derive the authority to defy the Commons, where the tax credit changes have been passed by the elected Tory majority. It was simply a matter of the “very fundamental principle, no taxation without representation”, and the Commons he said, was the “only representative chamber that should decide on matters of taxation.”

     However, Labour, LibDem, and crossbench peers defended their actions to table motions to delay or block the cuts under the notion that the cuts were not actually part of a finance bill or primary legislation. Instead, they were enshrined in secondary legislation known as a statutory instrument (or regulation), which according to The Guardian, is not "subject to the same line-by-line Commons scrutiny as legislation, but instead stand or fall on a single quickfire vote." However, by going about getting through the changes this way, George Osborne “forswore the ‘money bill’ exemption” with regard to the Lords, and therefore set it up to be more closely scrutinized there with the possibility of revisions being sent back to the Commons.

     In addition, the opposition and some cross-bench peers believed that they were within the limits of the Salisbury convention, which states that the Lords will not oppose government legislation if it was promised in the election manifesto of the government party.

     This then, leads to crux of the matter. The Conservatives spent the general election promising not to touch the tax credits brought in by the previous Labour government as part of its overall deficit reduction agenda. After the election, Osborne announced the creation of a UK National Living Wage, which would replace the minimum wage (currently at £6.50 per hour), and be gradually raised to £9.00 an hour by 2020. However, tax credits would also be reduced – with the government claiming that the National Living Wage would make up for the lost tax credit income.

     However, as the scale of the proposed reforms became known (that millions of families and individuals would be adversely affected to the tune of an average £1,300) and as there were questions regarding whether the National Living Wage could fully make up for it, opposition and unease increased. People who claimed to have supported the Tories in the election expressed their anger and the feeling that they had been lied to, including a single mother who unleashed her frustration on the BBC’s Question Time. Conservative politicians, including backbenchers in the Commons and Scottish leader Ruth Davidson, as well media pundits also expressed their displeasure and the need to at least find ways to blunt the effect of the cuts for the poorest working individuals and families who are beneficiaries of the credits. The idea of many of their constituents being told around Christmas that their benefits (and therefore a substantial part of their income) would be cut became increasing untenable in Tory ranks, but the reforms got through the Commons anyway.

     However, some peers contended that since the tax credit reforms were not featured in the Conservative election manifesto, they could at least be held up in the Lords for further debate and possible revision under the Salisbury convention.

     Following a passionate debate in the packed Lords chamber, a motion tabled by Liberal Democrat peer Baroness Manzoor to block the cuts outright was defeated. This was a so-called “fatal motion”, which is rarely used since peers are wary about overstepping their powers to throw out legislation from an elected government. However, the Lords did pass a motion tabled by Labour peer Baroness Hollis of Heigham to delay the cuts until the government produces a plan to compensate affected workers during a three year transition, as well as a crossbench motion tabled by Baroness Meacher to decline support for the cuts until the government outlines how it will help those affected by the cuts and responds to research by the Institute for Fiscal Studies, which claimed among other things, that only about a quarter of the income lost via cuts in credits would be taken up by the National Living Wage.

     This was a huge defeat for government of David Cameron and a personal blow to George Osborne, who responded that he would delay the policy until he finds a way to compensate the workers, and wait until his Autumn Statement next month to make an announcement about this. In the long-term however, he said that the events of last night raised “constitutional questions that need to be dealt with” and criticized “unelected Labour and Liberal Democrat Lords” for interfering on a financial matter passed  by the elected Commons. David Cameron’s office responded by saying that the Prime Minister will seek a “rapid review” with regard to the status of the Lords, saying that a “convention exists and it has been broken”, and that it must be restored to ensure that ensure that the Commons has complete primacy on finance issues.

     Other Conservatives made similar comments in expressing their outrage and fury towards the Lords, but some people who opposed the tax credit reforms appreciated the actions taken by the Lords, including some of its critics who believed that the chamber needs to be reformed into an elected body or abolished outright. Many commented it was good to see the Lords actually proving to be useful, while noting that it was sad that it took the unelected body of Parliament to force a climbdown by the elected government on this contentious, controversial, and quite personal issue.

     However, SNP members and politicians (including First Minister Nicola Sturgeon), never to be satisfied with anything the “Westminster parties” do, expressed criticism against Labour peers for abstaining on the Liberal Democrat motion to kill the cuts altogether. In response, Labour people said that their peers abstained because the “fatal motion” would have meant that Osborne could have just brought the cuts back again, and that delaying them to extract protections for those affected was more effective.

     Another reason for not passing the “fatal motion” was that it may result in a Conservative retaliation whenever Labour returns to government. To this, some Nationalists said this showed why the Lords needed to be abolished and replaced by an elected chamber that can actually take action without constitutional concerns, but as this is a more long-term concern and would not do anything to help those to be affected by the proposed reforms, it made more sense from a Labour perspective to do something that would force Osborne to think again, rather than do something that may have turned out to be ineffective and quite potentially overstep the power of the Lords more so than the delaying motions did.

     In many ways, this showed how the SNP is obsessed over constitutional arrangements they don’t like, rather than working within the existing system in the here and now to achieve positive outcomes for the day-to-day lives of their constituents. Certainly some of their members don’t seem to understand the intricacies of parliamentary procedure and strategy, for process matters as much as principle and the latter cannot be achieved without the former. Instead, they prefer to just wanting to tear things down and not observe necessary processes (and of course, having another go at the Labour Party for being “Red Tories”).

     One personal I interacted with said that along with “lack of principle”, the UK has a problem with process and tradition, as if to say that they get in the way of governing or taking certain actions. However, process and tradition are some of the things I admire and respect about the UK. Yes, they may perhaps be archaic, but they give character to the country and make it stand out – mostly in a good way, I might add. Many people look at such processes and traditions, and think, “Yep, that’s how the Brits do it”, and say it in a positive light because that’s simply how things have been done going back hundreds of years.

     That being said, there is always room for reform, and indeed, the British system has reformed it time and time again through many changes over the centuries – some revolutionary, others for more evolutionary and gradual. The monarch is no longer absolute, but constitutional; free elections are regularly held to Parliament with a universal adult franchise, as opposed to elections by the propertied elite; and the Lord’s are limited to a revising and scrutiny capacity, as opposed to an outright and perpetual veto.

     On this last point, yesterday’s developments showed how the Lord’s can be useful in these roles as a check on the government of the day, and it seems that people on both the left and right agree. Stephen Bush of the left-leaning New Statesman tweeted that it was “not a constitutional crisis for the Lords to return to sender. It’s just the constitution.” Adam Tomkins, a Glasgow law professor and Conservative candidate for the Scottish Parliament next year also tweeted that “it’s the House of Lords’ job to scrutinise legislation. That’s what they did today. It [would] be a constitutional crisis if they didn’t do it.” Conservative writer Tim Montgomerie of The Times emphasized in a tweet that the actions of the Lords had more to do with giving MP’s time to rethink, especially considering that "tax credits weren't specified in [the] Tory manifesto", and that for this reason, democracy was not "being undermined." Meanwhile, in relation to politics north of the Tweed, Kevin Shoefield of commented on Twitter that the Lords “does a better job of holding the executive to account” than the SNP-dominated committee’s at the Scottish Parliament (and many others on and off social media expressed similar sentiments).

     Nevertheless, the Lords still attract controversy for being viewed as not much more than a gravy train for former politicians and party favorites – a symbol to some people of a self-serving elite and of Westminster decadence and corruption. Furthermore, while there were expressions of pleasure and even "high-fiving" with the way the Lords acted yesterday, those who did so may not be pleased tomorrow if they are on the losing side of an issue taken up by the unelected body.

     Of course, the reality is that the House of Lord’s does have many people who take their membership seriously and actually work hard. There are elder statesmen who actually bother to read legislation (as they did in their previous political life) and serve to question the agenda of the government and provide counsel for particular areas of public policy for which they have a specialty.  There are also many others from all walks of life who also bring particular qualities and experiences to the upper house, and help to guide its decisions.

     Given what happened yesterday, it may very well be that the Lords acted as it should have done in scrutinizing legislation and turning it back to the Commons for revision, and that fears of a constitutional crisis are overblown. However, reform may be needed to make the Lords more legitimate in the eyes of the British public and therefore more able to take the kind of stands as it did yesterday.

     Among other things, perhaps there should be reform of the nominations process to the peerage, so as to reduce the use of Lords as a reward for party hacks and donors, and to encourage the nomination of people who can bring valuable skills and expertise in the Lords. In addition, there should be attendance requirements to ensure that peers are active in their job, as well as limitations on expense claims to prevent abuse of the system. Even more boldly, it should not be outside the realm of possibility for the Lords to represent the nations and regions of the UK on an equal or near-equal basis, in similar fashion to upper houses in Canada, Australia, and the US, where such representation gives constituents parts – particularly those with small populations – a greater sense that they have a role on running the country on the same terms as the larger areas. This, and perhaps eventually, a partially or entirely elected House of Lords would give the ancient upper chamber a more firm legitimacy in the eyes of the public and allow it be a more effective and meaningful body.

     For now though, the Lords will continue to operate as it has, and if the developments over the tax credits leads to long-term and positive constitutional reform, then that can only be good for British democracy going forward.