On October 26^th 2015 a majority of Peers within the House of Lords defeated the Conservative Government’s plans to reform child tax credit by supporting two motions put forward by Peers designed to delay the implementation of the new regulations pending further information. In the wake of the result, some accused the House of Lords of breaching a convention guaranteeing the primacy of the Commons on financial matters dating back, at the very latest, to 1911. In response, the Government announced that Lord Strathclyde would be leading a review into Parliament with a particular focus on securing the primacy of the House of Commons on financial matters, including on secondary legislation, which he hopes will be completed by Christmas. Various options for reform exist, including replacing current conventions with statute.

Two thought-provoking analyses of the situation have already been provided on this blog by Professor Meg Russell and Adam Tucker. The aim of both assessments is to downplay the government’s defeat by the House of Lords – to challenge the claim that we are currently in the midst of a ‘constitutional crisis’ – although both do so in markedly different ways.

Building upon the findings of a Constitution Unit project on the issue of financial privilege, Professor Russell seeks to contextualise the current dispute by emphasising the fact that this is the first time that a Conservative government has not dominated the second chamber. Her arguments can be summarised as follows: (1) that the most significant aspect of the vote was that the Lords decided simply to delay the government’s proposals, not reject them outright; (2) that the Tax Credits Act 2002 gave the House of Lords a veto over statutory instruments issued under it; (3) that the government’s defeat represents a return to the status quo regarding the relationship between the Lords and the Commons; (4) that restrictions on the Lords vis-à-vis financial matters are unclear and open to interpretation; (5) that any assertion of financial primacy by the Commons has a political dimension; and (6) that any solution to the renewed tensions between the Commons and the Lords should be political, not legal.

By contrast, Adam Tucker argues that the current dispute has nothing to do with the relationship between the two Houses of Parliament, and everything to do with the power of the executive. He therefore makes the following claims: (1) that the changes to tax credits were contained in secondary, not primary legislation; (2) that both Houses therefore act as supervisors or scrutinisers of executive law-making, not as legislators, when dealing with secondary legislation; (3) that constitutional rules and conventions regarding financial privilege are therefore inapplicable to the current dispute as they apply only to primary legislation; (4) that the House of Lords has no general power to veto secondary legislation and that it must be conferred upon them by the relevant Parent Act; (5) that such a power was conferred upon them by the Tax Credits Act 2002; (6) that House of Lords’ restrained use of any veto it is granted over secondary legislation should not be confused with the existence of a constitutional convention prohibiting its use outright; (7) that secondary legislation is often under scrutinised by the House of Commons; and (8) that the imposition of any convention restricting the powers of the Lords vis-à-vis secondary legislation would therefore free the executive from all scrutiny.

This post challenges a number of the arguments advanced by both writers, but does not dispute the claim that the Lords had the power under law to delay or even veto the changes to tax credit. This was, as correctly argued, expressly permitted by an Act of Parliament and thus legal. This post will instead focus on the issue of constitutional conventions. It will first explore whether a convention prohibiting the Lords to interfere with financial matters actually exists. I will then demonstrate that, even if the convention’s existence cannot be definitely established, there is nevertheless a strong democratic argument in favour of having such a rule. Furthermore, I will demonstrate that the most effective way of securing such a rule is not through the imposition of a new convention, but through legislation. In making this case for legislative reform, I will refer to, and build upon, some of the arguments I advance in an article published in last month’s issue of Public Law (R.B. Taylor, ‘Foundational and Regulatory Conventions: Exploring the Constitutional Significance of Britain’s Dependency upon Conventions’ (2015) Public Law (Oct) 614-632).

When discussing the British constitution, it is important to stress that one can behave unconstitutionally without also acting illegally. Constitutional conventions embody this idea which is so fundamental to Britain’s unwritten constitution. Conventions are political rules which govern the behaviour of constitutional actors, many of which have arisen after centuries of practice, and which also cannot be enforced by the courts. As Sir Ivor Jennings once noted, conventions ‘provide the flesh which clothes the bones of the law; they make the legal constitution work; they keep it in touch with the growth of ideas’ (Jennings, Sir W.I. The Law and the Constitution [1933] (5th edn, London: University of London Press, 1960), pp.81-82). Conventions, therefore, are often used to regulate the exercise of legal powers in accordance with accepted principles and standards. Consequently, although Professor Russell and Adam Tucker are correct in saying that the power to veto secondary legislation is conferred upon the Lords via the Tax Credit Act 2002, this fact alone does not automatically exclude the existence of any conventions regulating its exercise.

Although the existence of many conventions is beyond dispute, that of others is clearly not. Despite accusations that a convention has been breached by the House of Lords, there is little clarity or consensus on the actual scope and meaning of the claimed convention. Because reducing the deficit by cutting welfare spending, although not tax credits per se, was a manifesto commitment of the Conservative government, one could try and argue that the Lords breached the well-established Salisbury Convention. The Salisbury Convention, however, is concerned with ensuring that governments can pass legislation which they have a democratic mandate for. By contrast, much of the discourse concerning the defeat of the government’s proposals on tax credits has focused on the financial primacy of the Commons i.e. that the Lords’ refusal to back the government’s reforms, as approved by the House of Commons, infringed the financial privilege accorded to the Commons by virtue of its democratic nature. Commons primacy on financial bills is clearly beyond doubt due to the Parliament Act 1911. As Adam Tucker notes, however, this applies only to primary, not secondary legislation. The question, therefore, is whether the constitutional settlement of 1911 spawned a general convention on the financial primacy of the Commons which extends to secondary legislation.

Before considering whether the claimed convention exists, I would first like to briefly address its scope. Both Professor Russell and Adam Tucker make the point that the House of Lords delayed rather than defeated outright the government’s proposals on tax credits. I submit, however, that there is little material difference between the House of Lords delaying a measure or rejecting a measure. The purpose of the convention is essentially to shield financial matters from influence by the Lords. It is thus the subject matter of the legislation which is the prime concern, not its substance. Both constitute an interference with a subject matter which, according to the claimed convention, is outside the authority and competence of the Lords. Delaying the proposals, therefore, would not mitigate the Lords in breaching the claimed convention, should it of course exist.

The inherent uncertainty of conventions, even established ones, arises from the fact that conventions under the constitution are predominantly unwritten. Determining the existence of a general convention guaranteeing the financial primacy of the Commons, including matters covered by secondary rather than primary legislation, therefore requires recourse to Jennings’ tripartite test: ‘[F]irst, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?’ (Jennings, Sir W.I. The Law and the Constitution [1933] (5th edn, London: University of London Press, 1960), p. 136).

As has been frequently noted, the House of Lords has at most only ever defeated a statutory instrument five times, and never one dealing with a financial matter. As a result, there is some evidence of precedents for a convention on financial privilege extending to secondary legislation. As to whether there is a purpose to the rule, the answer appears self-evidently in the affirmative. Because financial matters concern public funds, collected via taxation from the public, it stands to reason that their usage, whether in the form of cuts or increases, should be at the discretion of those who represent, and are accountable to, the public in the form of the electorate: the House of Commons. For the House of Lords to intervene on such matters would thus be undemocratic. The rule, therefore, can be seen to embody democratic principles which are central to representative and accountable government and thus above partisan politics. It is for this reason that I disagree with Professor Russell’s argument that the primacy of the House of Commons contains a political dimension in the manner she suggests. Although a government may indeed see it as more advantageous to assert the primacy of the Commons when dealing with cuts rather than increases to public spending as she claims, this is immaterial when weighed against the democratic principles at stake. It is also for this reason that Adam Tucker is mistaken in attaching little importance to the approval of secondary legislation by the House of Commons. Although the quantity and quality of scrutiny accorded secondary legislation in the Commons may be a legitimate concern, the need for greater scrutiny does not, in my view, trump the democratic importance of ensuring that an unelected chamber does not subvert the will of the democratic one, even if the Commons merely approved a piece of executive legislation. As far as the existence of the convention goes, the sticking point is with proving that the Lords, whom it purports to bind, feel obliged to follow it. The actions of the Lords on October 26^th 2015 certainly suggest otherwise, and Adam Tucker has supplied evidence – the strongest of which is the motion passed by the Lords in 1994 – which strongly suggests that they have consistently not felt bound by any convention prohibiting them from voting on any piece of secondary legislation, including financial matters therefore, for some time. Consequently, under Jennings’ tripartite test, there is accordingly no convention and thus the House of Lords acted, not only legally, but also constitutionally when they defeated the government’s proposals on tax credits.

It is submitted, however, that the evidence presented by Adam Tucker concerning the House of Lord’s belief in the absence of a convention highlights a serious democratic flaw in the current constitutional arrangements which can be best illustrated by reference to my recently published article in Public Law noted above. In my article (pp.622-627), I explore the constitutional significance of Britain’s heavy dependency upon conventions and in so doing draw a new distinction between conventions which are either foundational or regulatory in character.  I classify as ‘foundational’ those conventions which govern unelected constitutional actors, such as the Queen and members of the House of Lords, whilst I classify as ‘regulatory’ those which govern elected constitutional actors such as MPs, including Ministers. Dependency upon regulatory conventions, I argue, is paradigmatic of a political constitution because they remove any threat of legal checks by the courts against both Parliament and the government, thus facilitating political, rather than legal, accountability. Foundational conventions, however, do not facilitate political accountability because they govern the behaviour of unelected constitutional actors who are politically unaccountable for their actions to the electorate and in so doing merely lay the foundations of the democratic order. Britain would simply not be a democracy but for the limits imposed by conventions upon the Queen and the House of Lords to respect the democratic will of the Commons and the government. Consequently, I argue that foundational conventions can be replaced by laws without undermining the prominence of political accountability under the constitution.

Building upon the argument in my Public Law article, this post argues that the case for replacing foundational conventions with laws is further strengthened when one recognises that such unelected actors will face no political backlash should they breach such a convention. If the government were to breach a regulatory convention binding them, both the electorate and the House of Commons could hold them to account for that breach. As I argue in my Public Law article (pp.627-631), fear of loss of office is one of the driving forces behind compliance with regulatory convention which are, as noted above, incapable of any legal enforcement by the courts. The same, however, is clearly not true of unelected actors such as those who reside in the House of Lords. Professor Russell’s argument that the solution to the break down in relations between both Houses of Parliament should be political, not legal, is therefore ill-founded. Given the importance of these conventions to democratic society, cross-party discussion and agreement within the Lords on the conventions which bind them are, given the Lords’ unelected and unaccountable nature, less effective than laws in securing the primacy of the Commons. Where there is no political backlash for a breach of convention, Peers themselves cannot be relied upon to develop and abide by conventions. Where political consequences do not follow a breach, the only enforcement mechanism available is legislation.

If all three parts of Jennings’ test had been satisfied, it is clear that the claimed convention, given its democratic importance, would have been foundational in nature. With this in mind, it appears unsatisfactory that the existence of the claimed foundational convention depends upon its acceptance by unelected and unaccountable persons, who are not motivated by fear of the electorate or loss of office. The democratic justification for the convention – the purpose behind it – is clearly so strong that, even though the convention cannot be established on the grounds noted above, it would unreasonable to not introduce it in the form of legislation. When can it ever be realistically said that unelected members of the House of Lords should be allowed to block financial measures passed with the support of the elected House of Commons? This is undisputedly a political issue, not the financial primacy of the Commons as Professor Russell claims, and any attempt at answering it would inevitably turn on one’s own political views vis-à-vis specific policy matters, such as reforming tax credits, which, as a result, are in principle better left to the chamber which is democratically-elected and politically accountable for such policies. Should the electorate disagree with the changes to tax credits, they can express their concern at the next election. Should the electorate disagree with the Lords, they can do nothing in retaliation. Whether the electorate do or do not support the government’s proposed reforms to tax credits is immaterial. It is enough to say that it is the right of the Commons, who represent the electorate, to support or reject government policy as it is they who will be judged by the electorate accordingly, not the Lords.

In order to guarantee the democratic foundations upon which the constitution rests, existing foundational conventions binding the House of Lords should be replaced with statute, and the financial privilege of the House of Commons should be extended to include secondary legislation. Such legislative reform is, given the wider problems of the House of Lords, relatively modest but no less important. Whether the House of Lords will one day be reformed so as to make the necessity for such change obsolete remains to be seen. Given the historical reluctance of the Commons to reform the Lords, the driving force behind any wider constitutional change will depend, I suspect, on how the Lords choose to conduct themselves in their dealings with the Commons in the future.

Dr Robert Brett Taylor is a Lecturer in Law at the University of Aberdeen.

(Suggested citation: R. B. Taylor, ‘The House of Lords and Constitutional Conventions: The Case for Legislative Reform’ U.K. Const. L. Blog (16th Nov 2015) (available at https://ukconstitutionallaw.org/))