My Times column on the constitutional confrontation between the Lords and the Commons:
‘How can you have a constitutional crisis without a constitution?” asked a Dutch friend coming to a meeting in the House of Lords last week. Of course, it is because there is no written constitution that today’s attempts by Labour and the Liberal Democrats to defeat the will of the elected Commons in the unelected Lords on tax credits, or tomorrow’s on the electoral register, are a constitutional outrage, even if not strictly illegal.
But given that the two main opposition parties heavily outnumber the government in the Lords and are now combining to defeat just about anything they choose in the upper house at whim, then even without this week’s votes a crisis is looming. Some Lib Dem peers, in particular, seem almost pleased at the prospect: after their near-total ejection from the Commons, and now that they are the only party over-represented in the Lords, throwing their weight around in the unelected house feels good. If it results in blowing up the Lords altogether, so be it; they have little left to lose after the failure of their own preferred reform, which would have given them the balance of power through an alternative-vote system.
The government may still win today’s votes on three motions to delete or delay the cuts to tax credits — if sufficient cross-benchers heed the advice of the former cabinet secretary Lord Butler that the Lords is getting “too big for its unelected boots”. He argues that we would be breaking long-established conventions that the unelected house should not vote down financial measures, let alone by defeating a statutory instrument on policy grounds.
The problem the government has is that today’s debate will not be seen in the media as being about the constitution, but about tax-credit cuts. Plenty of Tories, though keen on the policy of gradually ceasing to subsidise big firms such as supermarkets by topping up the wages of their cheapest employees, worry that the measures are going to hit the poorest too hard and too soon, before the living wage helps them.
Tomorrow’s crisis is more clear-cut. The Labour party wants to delay individual registration of voters, which is a process designed to cut fraud, because that way the country can redraw constituency boundaries on a register that slightly favours them. Again, they plan to do so by voting against a statutory instrument.
Shortly after the election in May, I wrote in this space that the loss of the Liberal Democrats from government to opposition “bodes ill for the government winning votes” in the House of Lords and that “it becomes hard now to see how the Conservatives will ever win a controversial vote”. The government has lost three quarters of all votes in the Lords since the election.
My prediction hardly required the skills of Nostradamus, but some thought I was being too pessimistic and that the Lib Dems and Labour would not join forces or would respect the long-standing conventions that the Lords never oppose government manifesto business, never block financial measures and rarely vote down statutory instruments. They are trying to do all three this week.
There is no longer much veneer of respect for these conventions. Last week I listened to some Labour peers seriously arguing that the Conservative manifesto promises to abolish “new public subsidies” for onshore wind power applied only to new types of subsidy, not payments to new applicants. Therefore, in voting against that part of the energy bill, they were not in breach of the “Salisbury convention” that the opposition should not wreck manifesto commitments in the Lords.
The Liberal Democrat leader, Lord Wallace of Tankerness, was more honest: the Salisbury convention is out of date, he said. That convention came about, remember, because in 1945 the Attlee government had just 16 Labour peers facing more than a thousand Conservative opponents. But it got its nationalising legislation through because of a self-denying ordinance agreed by the Conservative leader, Lord Salisbury, with his opposite number, Lord Addison.
So the established constitutional position that the House of Lords exists to scrutinise legislation and improve it, rather than to score party political points and overrule the Commons, is being torn up. The Lords is becoming a place where Jeremy Corbyn’s 212 Labour peers in alliance with 111 Liberal Democrats can inflict frequent defeats on the government’s 249 (of which I am one). The 176 cross-benchers and 26 bishops, who hold the balance of power and, in theory, ensure that votes are won on the argument rather than party lines, tend to split down the middle most of the time when they vote in numbers at all.
The prime minister got a lot of stick over the summer for appointing extra peers. But after the latest round of appointments, the Conservatives will have a net gain of just seven seats — or less than 1 per cent. Scarred by the failure of the Clegg reform last time, David Cameron pledged not to radically reform the Lords in this parliament. But the appetite for reform is now strong among peers themselves. The general public increasingly think we are all too old, incompetent, venal and numerous.
So a gradual consensus is building inside the Lords that we should use this crisis to reform ourselves, probably by bringing in some combination of a retirement age, a minimum attendance requirement and a rebalancing of party strengths by internal election. So, after retirements are taken into account, the parties would vote out a proportion of their members so their strengths reflected either the votes cast at the last election or the seats won in the Commons (or an average of the two). The size of the house would shrink to match that of the Commons, though with cross-benchers retaining the balance of power.
Of course, there are complications in such a scheme. Ukip might need extra peers. It currently has three — 108 fewer than the Liberal Democrats, despite getting 60 per cent more votes in the last general election. The Scottish Nationalists might be granted a proportionate number of seats that they could choose to leave vacant if they wished (they currently refuse to appoint peers). Some provision would need be made for rolling retirements to enable the introduction of new blood.
Something has to give. Whatever the merits of any individual issue, it is outrageous that the losers of the general election are exercising, from an unelected chamber, a continual power of veto over the will of the elected chamber.