Some Thoughts On The Strathclyde Review

Lord Strathclyde has published his review of the powers of the House of Lords in relation to secondary legislation. The TL;DR of it is that the peers’ absolute veto should be replaced with a suspensory veto.

David Cameron commissioned the Strathclyde Review after the Lords rejected the Government’s tax credit cuts in October. Because the cuts were contained in a statutory instrument rather than a bill, the Lords’ veto was absolute. Lord Strathclyde argues that peers should only be able to delay secondary legislation instead of blocking it outright. In principle, this is a sensible way to proceed. Although the Lords were well within their rights to reject the tax credit cuts, their absolute veto over secondary legislation seems anomalous in light of political developments since 1911.

Arguably, the most straightforward solution is to have a specified period of delay before the Commons can override the Lords’ veto of a statutory instrument, but Lord Strathclyde rejects this approach, citing potential issues with statutory instruments’ commencement provisions. Commencement dates are usually set by the statutory instrument itself, and they can’t be changed once it has been laid before Parliament. This could lead to situations where statutory instruments are lost because MPs can’t override the Lords’ veto in time. While this is a valid concern, it’s not exactly insurmountable–if peers reject a statutory instrument and the commencement date falls within the period of the suspensory veto, Ministers could be given the power to set a new commencement date.

Lord Strathclyde’s other argument against a fixed period of delay is that MPs need to have the ability to overrule peers quickly in cases of urgency. However, there is no mechanism to shorten the Lords’ power of delay over primary legislation. In an emergency, peers generally cooperate with the Government, and it is unlikely that they would veto secondary legislation that was truly urgent. But it’s possible to address Lord Strathclyde’s concerns while still having a fixed period of delay for most business. Certain types of secondary legislation could be subject to a fast-track procedure whereby MPs can override the Lords’ veto much sooner than normal. Of course, it would have to be carefully circumscribed (e.g., it could be restricted to statutory instruments made under the Civil Contingencies Act 2004), lest it become an easy button that Ministers can use whenever the going gets tough.

Without a fixed period of delay, there is a real danger that the suspensory veto will end up being so inconsequential that the Government can freely ignore it. The yearlong day permitted by the Parliament Acts forces the Government to engage with the Lords,[1] and similar principles should apply to secondary legislation. Although MPs must have the final say, it’s important to have a ‘speed bump’ that can discourage hasty and ill-advised proposals.

NOTE

[1] For an account of the Lords’ role in influencing Government policy, see Meg Russell, The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford: Oxford University Press, 2013), chs. 6 & 7.

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