The House of Lords and secondary legislation: Government declines to implement Strathclyde Review (for now)

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The Government has today published its response to several highly critical select committee reports concerning the Strathclyde Review. That Review, prompted by the House of Lords’ opposition to secondary legislation on tax credits, was published in December 2015.

The Strathclyde Review’s central recommendation was that the House of Lords’ powers in respect of statutory instruments should be brought more into line with its powers, under the Parliament Acts 1911–49, in respect of primary legislation. The Lords would have lost its power to block statutory instruments, any attempt to block being vulnerable to the exercise by the House of Commons of an override power. As with primary legislation, the Lords would have been able to require the Commons to think again, but it would not have wielded a veto. Indeed, under the Strathclyde proposal, the Lords’ powers in relation to statutory instruments would in one respect have been even more limited than its powers in respect of primary legislation: whereas the Parliament Acts enable the Lords to hold up primary legislation for one year, Strathclyde proposed no fixed period of delay in relation to statutory instruments rejected by the Lords. This raised the prospect of almost-immediate Commons override.

In its response to the select committees published today, the Government gives no ground when it comes to the substance of the matter. It emphasises that ‘[t]he primacy of the House of Commons on legislation is a long established principle of our democracy’ and says that while ‘the House of Lords plays a vital role in scrutinising and revising legislation’, in the event of disagreement ‘it is the will of the elected chamber that should prevail’. But these propositions—as unremarkable as they are axiomatic—were never really in question. What was in question was whether they ought to be institutionalised through the arrangements proposed in the Strathclyde Review.

The Government has decided not. At least, not for the time being. Legislating on this matter, says the Government, ‘is not a priority’ at present. However, it leaves the door open to future legislation along the lines recommended by Strathclyde. In particular, it shares Strathclyde’s (contestable) view that non-legislative ways forward would be unviable; concludes that the Commons’ primacy in relation to secondary legislation could be guaranteed only through legislation; and agrees that legislation ‘would bring clarity and certainty to the current arrangements’. Moreover, in declining to bring forward legislation at present, the Government fires a warning shot across the House of Lords’ bows:

The Government has decided not to introduce primary legislation to implement Lord Strathclyde’s recommendation in this parliamentary session. However, if the House of Lords puts itself in a position where it seeks to vote against [statutory instruments] approved by the House of Commons, then Lord Strathclyde’s recommendation provides a clear mechanism for the House of Commons to be able to assert its primacy over [statutory instruments].

That the Government is not pressing ahead (at least for now) with the legislation proposed by Strathclyde is to be welcomed. The Government’s setting up of the Strathclyde Review was a kneejerk overreaction that risked turning a fit of executive pique into a significant but inadequately thought through constitutional change.

The explanation for the Government’s change of heart might well lie in part in the change of personnel at the top of the Government since the tax credits affair blew up, and the Strathclyde Review was established, in 2015. However, Brexit may well form another part of the explanation — although its implications in this context are not straightforward, and arguably pull in more than one direction. Most obviously, the Government currently has other — much bigger — fish to fry. Depending on what the Supreme Court decides in Miller v Secretary of State for Exiting the European Union, the Government might need to introduce legislation providing for the initiation of the Article 50 withdrawal process. Any such legislation would, however, be dwarfed in scale and complexity by the ‘Great Repeal Bill’ and the subsequent process of disentangling UK and EU law. Against that background, the Government may have judged that this is not an opportune moment at which to pick a constitutional fight with the House of Lords.

However, a further layer of complexity is added by the fact that the Great Repeal Bill is itself likely to make wide provision for the enactment of secondary legislation to allow for the revising of the statute book in the light of Brexit. Given that, it is perhaps surprising that the Government has not yielded to the temptation to (as it might see it) put the House of Lords in its place, thereby smoothing the way for the future exercise of the executive law-making authority liable to be created by the Great Repeal Bill. But the judgement, presumably, is that the ill will that would ensue would be unhelpful at the present time. After all, the Government will not be willing to countenance its Brexit timetable (such as it is) being blown off course by having to invoke the Parliament Acts. And while it is hard to imagine the Lords ultimately digging in its heels to an extent that would necessitate recourse to those Acts, the mere possibility of its doing so is likely to give it some degree of leverage when it comes to the enactment of Brexit-related primary legislation. A House of Lords stripped of its power to block secondary legislation would be able to assert itself only by, in the first place, delaying the enactment of Bills conferring executive law-making power. It is therefore hardly surprising that the Government has stepped back from implementing Strathclyde. It seems, then, that in typically British fashion a sensible constitutional outcome has been arrived at, but by nothing more principled than the forces of realpolitik.