Cameron refuses to let sleeping Lords lie

http://www.theguardian.com/politics/2015/dec/17/cameron-refuses-to-let-sleeping-lords-lie

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With David Cameron busy at yet another “make or break” Brussels summit, Thursday has clearly been judged a good day to bury some bad news about British democracy. And no, I don’t mean the government’s wild goose chase in Europe. I mean the fate of statutory instruments.

Statutory what? Don’t go away. It’s important. As the PM got stuck into his strong mid-morning Belgian coffee, Chris Grayling, his expendable leader of the Commons, was formally unveiling the Cabinet’s revenge strategy – here’s Patrick Wintour’s pre-briefed account – for its well deserved defeat over tax credits by the House of Lords.

If you recall, there was widespread uproar over the chancellor’s July budget plans to trim the welfare budget (its rarely mentioned biggest component is pensions) at the unnecessary expense of poor working families whom he always says he’s trying to help.

In October a Labour-drafted amendment from Patricia Hollis, a serious expert in this field, asked George Osborne to think again. Low and behold, in his autumn statement, he did. Unkind colleagues and media called it a U-turn, which it was. It pushed back the Treasury’s plans to close the deficit.

No shame in that; Osborne has often done that already. No shame in a U-turn either; we all get things wrong. I thought the Lords was wrong on votes at 16 for the EU referendum. MPs turned them over.

But, as the Flashman side of Cameron often demonstrates, he doesn’t like being thwarted.

You can see it in the FoI review now underway, in the trade union finance “reforms” designed to stuff Labour funding. You may have seen it in last year’s lobbying bill, which damaged charities’ advocacy platforms without hurting lobbying’s real rascals. The Guardian’s Andy Beckett thinks it’s part of a plot: Tory rule for ever.

So I got it wrong too in suggesting that, after an initial tantrum in No 10 and 11, Dave and George would go quiet about their threats to get their own back on the uppity cross-party and no-party coalition of peers who called their bluff.

The pair said they would curb the power of the Lords to block what is known as secondary or delegated legislation, the power of Whitehall departments to amend a statute (ie a law) contained within that law without requiring another law to amend it.

Nothing wrong with statutory instruments (SIs); modern government is complicated and a device is needed to allow ministers and officials to tweak the rules in the light of changing circumstances. But what’s been going on for decades and getting worse under the Cameron regime is the growing use of SIs to do things which are more substantial than SIs were devised to do, in other words backdoor legislation, often late at night with little scrutiny.

In his report, the one Grayling explained to MPs on Thursday, Lord Strathclyde, the emollient Tory ex-Lords leader, concedes the problem of over-use because he proposes it should be curbed after a further review. It’s an abuse of procedure, as parliamentary officials of great experience know. Ministers privately admit abuse.

With honourable exceptions, MPs and their select committees are not very good at this sort of detailed SI scrutiny – they never have been. Pernickety peers are better, some pride themselves on it, they have more time in God’s Waiting Room than the elected young thrusters.

In any case, ministers say, tax credits are financial, and the Lords lost the power to challenge budgets after their great budget crisis with Lloyd George in 1909-11. In that case you shouldn’t have used an SI, counter rebel peers.

There were two further complications in the tax credit train crash that led to Strathclyde’s review. The important one is that Cameron’s government is the first Tory Commons majority regime for a very long time – probably 150 years at least – that can’t count on a built-in Lords majority too. Tony Blair’s partial reforms got rid of all but 92 of the mostly Tory hereditaries in 1999. Both he and – far worse – Cameron have created many new life peers, so that the numbers are pushing 1,000 again. Here’s the latest data.

It mattered less during the 2010-15 coalition because Lib Dem peers mostly sided with the Tories. The swing votes were those of crossbench (ie non-party) peers who had to be persuaded either way by argument. That’s a crucial point. One Labour pal tells me that the Camerons have only just cottoned on to the point after seven months in majority. Argument works better than brute force. They’re finally learning.

That’s partly why the government won four by votes in the Lords on Wednesday night, three on the EU bill, one in defeating a “regret” motion on a health and safety SI. Which one? I don’t know. I am weak on SI details too.

Such wins undermine the second complication I mentioned. Ministers complained they have been defeated in 23 out of 38 votes (peers vote much less than MPs) in the new parliament – 23 out of 42 since Wednesday night’s wins. That’s more than half, a higher rate than before Cameron won his majority on 7 May. Most were on bills starting in the Lords (ie not yet seen by MPs), five were on SIs, one on procedure at the instigation of a crossbench peer. Critics sense it is ministers who are cutting up rough with the Lords, not vice versa, doing so because they don’t like peers taking them to task.

We could talk a lot about the unelected upper house, but that’s not the issue here: the issue is its powers. Cameron is the latest of many PMs to promise reform – Blair did most, but obviously no one wants to credit him – but to run out of time or will. He and Nick Clegg dropped the catch.

Powers matter. Moderate Strathclyde is proposing not that the Lords loses all power to reject SI’s, but that peers retain the right to reject them only once, a warning shot across the government’s bow. He wants it enacted in a short bill, unusual for parliamentary procedure because being formal legislation thereby makes it vulnerable to the courts.

My hunch was that all this would be too much trouble when real problems need tackling. But ringing around, I get the sense the Lords will compromise with Strathclyde’s compromise. That’s often wise, but it’s also disappointing.

People worry about “Brussels” taking more power, but the EU is much feebler than our own governments of all colours. Power flows up and down in our society – think how the internet empowers us all – but too many politicians want to cut corners and centralise in their dash to “do good”. Even the SNP does it at Holyrood.

I don’t subscribe to Andy Beckett’s “Tory Plot” thesis. Voters always throw them out in the end. But they do need watching and regulating. The upper house is part of that regulatory network. Call their bluff again, your Lordships.