During the House of Lords’ debate on the Government’s tax credit cuts, Lord Mackay of Clashfern attempted to argue away peers’ role in approving regulations under the Tax Credits Act 2002. He claimed that this is essentially a matter of courtesy, and he drew an analogy with money bills, which still go through the Lords even though convention dictates that peers should not amend them. While I hesitate to contradict a former Lord Chancellor, I disagree with his assessment.
Money bills must be formally passed by the Lords because they are primary legislation, and the constitution says that primary legislation is enacted by the Queen with the advice and consent of the Lords and the Commons (unless, of course, the Parliament Acts 1911 & 1949 have been engaged). But as I explained earlier, secondary legislation is a different animal entirely. It is usually enacted by a Minister of the Crown, and while it is often subject to some form of parliamentary control, this control can take many different forms. While it’s common for both Houses to share power of approval or disapproval, there are plenty of cases where these powers are exercised by MPs alone (e.g., many of the statutory instruments made under the various Finance Acts). This suggests that the equal control established by the Tax Credits Act 2002 is something more than customary courtesy.