In the wake of the Government’s defeat on tax credits in the House of Lords, the House of Commons Library has published a briefing paper, “Conventions on the relationship between the Commons and the Lords“.

At 23 pages long, the briefing paper is a helpful introduction to the various conventions that govern the relationship between the Houses, chiefly:

  • the “Salisbury Convention” – which generally means that the House of Lords should not reject, at their second or third readings, Government Bills brought from the House of Commons for which the Government has a mandate from the nation (such mandates usually stem from a manifesto commitment);
  • the convention that the Lords does not usually object to secondary legislation – unlike for most primary legislation, the House of Lords has a power of veto over secondary legislation, although it had only used that power on four occasions before the tax credits issue;
  • the financial privilege of the House of Commons – under the Parliament Act 1911, the Lords cannot require any amendments to money Bills, although there is some disagreement about the exact scope of this convention; and
  • the convention that the Lords should consider all Government business “in reasonable time” (again, there is debate about what exactly this means).

Readers will not find any new law or interpretations of the conventions in the briefing paper. However, the briefing paper does provide insight and clarity for those who may be somewhat confused by the Government’s indignation over the Lords’ apparent “defeat” of the statutory instrument making changes to the tax credit rules.

On 26 October 2015, the Lords twice amended a motion, so as to decline considering a piece of secondary legislation that would have implemented the Government’s policy making changes to tax credits. Many commentators held that the Lords was entitled to do so – but the Government disagreed, stating that the Lords had failed to respect convention, something that would “fundamentally change” its relationship with the Commons.

Not only is there confusion over the exact scope of the conventions governing the relationship between the Houses, but there has also been dispute about what exactly happened in the Lords that day. As the paper explains:

“The two amendments which were passed could be considered as fatal as the House had a choice as to whether or not to approve the draft statutory instrument, and the effect of the amendments was to not approve it. However, it could also be argued that they did not “kill” the statutory instrument – they would allow it to be passed in future if the conditions they set were met. This appears to have been the first time amendments have been passed to decline to consider an instrument.”

The Government have now tasked Lord Strathclyde with the rather optimistic task of carrying out a “rapid review” of the relationship between the Houses and reporting back “before Christmas”.