The Government, The House Of Lords, And The Tax Credit Cuts

The Huffington Post UK recently claimed that the Government may ‘suspend’ the House of Lords if peers vote against George Osborne’s tax credit cuts next week. According to an anonymous Government insider, “one option is to simply suspend the Lords’ entire business, and process bills purely through the Commons.” It’s an eye-catching statement, but it strains the bounds of credulity.

The Government simply does not have the power to make inconvenient parts of the constitution disappear by fiat. The House of Lords is an integral part of Parliament, and bills cannot receive Royal Assent unless they have passed the Lords as well as the Commons. The only exception to this rule is when a bill is passed under the provisions of the Parliament Acts 1911 & 1949, but even then peers aren’t bypassed entirely. The bill follows the normal parliamentary path until its second rejection by peers, at which point it becomes law without their consent. The House of Lords can only be stripped of its legislative power by an Act of Parliament.   

More plausibly, the HuffPo speculates that the Government might try to flood the House with Conservative peers to make it more compliant. Before the advent of the Parliament Act, mass ennoblement was often the only way to break an impasse caused by intransigent peers. In practice, the mere threat would be sufficient to persuade the Lords to yield (for example, Tory peers dropped their opposition to the Parliament Bill once they realized that George V would create a massive number of Liberal peers to ensure its passage).

However, it’s not clear that mass ennoblement would be appropriate in this case. H. H. Asquith only asked George V to agree to mass ennoblement after protracted negotiations with the Tories failed to reach an agreement on limiting the powers of the Lords. Also, the Liberals campaigned on a promise to reform the Lords during the December 1910 General Election, so Asquith could claim a popular mandate for the policy. In contrast, the current Government’s tax credit cuts were not a part of their manifesto, and the two Houses have not been at loggerheads for an extended period of time on this issue.

Mass ennoblement would have far-reaching ramifications. The peers that David Cameron creates to get his way right now would stay in the Lords until they die or retire. This means that a future Labour Prime Minister would have to embark on their own program of mass ennoblement to redress the balance, and it won’t be long until the House has swollen to farcical proportions.  

The Government may disagree with the Lords’ response to the tax credit cuts, but they must resist the temptation to reach for the easy button. Their short-term frustration must be balanced against the long-term damage that a rash decision could do to the constitution. 

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6 Responses to The Government, The House Of Lords, And The Tax Credit Cuts

  1. drvandalia says:

    Ok, lets assume for a minute that the House of Commons passes such a bill, specifically declares that it will come law without the assent of the House of Lords, and requires the Prime Minister to advise the Queen that she must give her assent.

    In the US, an equivalent actions would be declared unconstitutional by the Supreme Court. Do the British courts have that power? As a practical matter, could the Queen refuse the advice of the government in such a situation?

    • jasonloch says:

      The principle of parliamentary sovereignty means that British courts cannot declare legislation unconstitutional. However, in a situation like the one you described, the Queen would be justified in withholding Royal Assent since the bill would be a flagrant violation of the constitution. If MPs want to strip the House of Lords of its power, they must do so within the boundaries of the constitution. The only way for a bill to become law without the consent of the House of Lords is through the Parliament Acts 1911 & 1949. The Commons can’t unilaterally bypass the upper house.

      • drvandalia says:

        Thank you. That is what I thought. Of course in such a situation, someone will inevitably complain that the Queen has become “political” in failing to give the Royal Assent when in fact such a refusal would be her duty.

        This brings out an interesting comparison being the US Constitutional system with its explicit assumption that individuals and institutions will always attempt to exceed their power and strong checks and balances are necessary, and the British system with its implicit trust that parties will eventually “do the right thing.”

      • jasonloch says:

        There was a dispute in the Australian state of New South Wales that neatly illustrates what can happen when the UK’s system collides with a more American-style system. In 1979, the Government of New South Wales announced that it would introduce bills to abolish appeals from state courts to the British Privy Council and give New South Wales Ministers sole responsibility for advising the Queen on the appointment of the State Governor (although the Governor General of Australia was appointed on the advice of the Australian Government, State Governors continued to be appointed on the recommendation of the British Foreign Secretary since the states were still considered self-governing dependencies of the British Crown). Such bills would have to be reserved for the Queen’s personal assent, and this meant that the British Foreign Secretary (Lord Carrington) would get involved.

        The Foreign Office’s legal advisers argued that these bills would be unconstitutional since they would exceed the power of the State Parliament. The Government of New South Wales responded by saying that in Australia, it was up to the courts to decide whether legislation was unconstitutional. But the idea of advising the Queen to assent to unconstitutional legislation made the Foreign Office very uncomfortable.

        Lord Carrington informed the Governor of New South Wales that, if the New South Wales Government persisted in trying to unilaterally abolish Privy Council appeals, he would advise the Queen to withhold her assent to the legislation. However, the Parliament of New South Wales passed the bill anyway and sent it to the Governor.

        In the end, the Government of New South Wales backed down, and the bill was left in limbo in the Governor’s desk drawer. Although the Government of New South Wales continued to advocate for the right to advise the Queen directly on the appointment of the State Governor, they adopted a less provocative approach. The matter would eventually be resolved in their favor a few years later when the UK formally relinquished its remaining power over the Australian States.

        The crux of this dispute was the fact that the UK and Australia had very different ideas of what made a law unconstitutional. Like the US, Australia has a written constitution that the courts use as a litmus test to determine constitutionality. But in the UK, the concept of constitutionality is a lot broader, and convention plays a much greater role. Both sides were arguably right, and that made it difficult to solve the dispute through compromise.

  2. Pingback: Peers Vote To Delay Tax Credit Cuts | A Venerable Puzzle

  3. Pingback: Government Ditches Plans To Curb Lords’ Powers | A Venerable Puzzle

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