In an open letter written in the context of the passage of the Terminally Ill Adults Bill through Parliament, three former Cabinet Secretaries assert that respect for the ‘primacy’ of the Commons is ‘not optional’. Contrary to this claim, however, the Commons has only such primacy as convention and law accord to it.
In a recent article in the Sunday Times on the House of Lords’ scrutiny of the Terminally Ill Adults (End of Life) Bill, the newspaper’s Political Editor, Caroline Wheeler, said that: ‘Any attempt by the Lords to block a bill backed by the Commons would breach long-established constitutional conventions because it would subvert the authority of the elected chamber.’ The implication of this claim — which is manifestly incorrect — is that it is invariably constitutionally improper for the House of Lords to decline to approve a Bill once it has secured the approval of the House of Commons.
In fairness to Wheeler, her own claim echoed that made by several former senior civil servants who ought to know better. In an open letter quoted by the Sunday Times, the following claim was advanced by, among others, Lord O’Donnell, Lord Butler and Lord Turnbull, each of whom served as Cabinet Secretary:
Respect for the primacy of the Commons is not optional; it is the foundation of our parliamentary legitimacy. For this Bill to fall not on its merits but due to a deliberate procedural quagmire in the unelected chamber jeopardises the reputation of Parliament as a whole.
The second claim, concerning the reputation of Parliament, is debatable. It might, for instance, equally well be asserted that the reputation of Parliament would be jeopardised if it were to allow a Bill to be enacted on a matter as consequential as assisted suicide without subjecting it to the closest scrutiny. That point is given greater force by the fact that many MPs made it clear that their own approval of the Bill was contingent on their expectation that it would be examined forensically by the Lords.
The former officials’ first claim — according to which respecting the ‘primacy’ of the Commons is ‘not optional’ — seems to me, far from being debatable, to be straightforwardly incorrect. I was therefore grateful that the Sunday Times published my letter on this matter, which (prior to being lightly edited by the newspaper) read as follows:
Your article on the House of Lords’ role (“Peers’ delay of assisted dying bill ‘could lead to constitutional crisis’”, news, Dec 7) gets some basic constitutional points wrong. It is not the case, as Caroline Wheeler asserts, that the Lords would “breach long-established constitutional conventions” if the bill were to be blocked. Former Cabinet Secretaries and others, whose open letter is quoted in the article, are similarly incorrect when they claim that: “Respect for the primacy of the Commons is not optional”.
Constitutionally, the Commons has only such primacy as convention and law provide. By convention, the Lords should not block manifesto bills, which the Terminally Ill Adults Bill is not. Legally, the Parliament Acts allow the Commons to legislate unilaterally if the Lords occasions at least a year’s delay, which it has not (yet) done. The very existence of those specific limitations on the Lords’ role demonstrates that there is no general principle requiring the Lords to yield to the Commons. Views differ on whether the Lords should be reformed or its powers limited further. But the current constitutional position is clear.
I examined these issues more closely in a blogpost published earlier in the year, entitled: Would it be constitutionally improper for the House of Lords to block the Assisted Dying Bill? The answer to that question, contrary to the assertion of three former Cabinet Secretaries, is ‘no’.
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