My Lords, at this point in the debate I wish to put a rather different slant on it, even though I know that what I am about to say will not endear me to many of my noble friends. I believe that there is a four-letter word that best describes the debate’s background. That word is “myth”. In fact, it is worse than that. It is myth based on myth.
Why do I say that? On his own admission, the Prime Minister asked my noble friend Lord Strathclyde to look at the relationship between the two Houses in relation to statutory instruments, having been frightened that there were two Motions on successive days to defeat SIs on tax credits and electoral registration. The indisputable fact is that these Motions were indeed laid. Both were defeated by reasonable majorities, in accordance with the conventions—pace my noble friend beside me. The noble Baroness, Lady Smith of Basildon, was spot on when she said on 17 December:
“Let us be clear that in this Parliament three attempts at a so-called fatal Motion to reject an SI have failed”.—[Official Report, 17/12/2015; col. 2191.]
I take it from that statement that the Opposition, while complaining loudly, did the decent thing in not supporting such Motions, according to the convention—which unfortunately only some of us understand. How can you have a convention when Members of the House either do not agree with it or do not understand it? The net result of the Motions was that, as we all know, the Government’s policy, announced in the Autumn Statement, came to a grinding, if temporary, halt.
This brings me to another myth. In the debate on the Motion, several noble Lords expected the order to be covered, as we have heard today, by financial privilege. The trouble is that this option is never available for statutory instruments. They further thought that the affirmative Motion should have been included in a finance Bill, or a Bill specifically for the purpose, which would have been certified as coming under yet another convention: financial privilege—again, not regularly understood by all Members of the House, and sometimes by the Front Benches when they want to confuse the issue.
Both would have taken several weeks to get on to the statute book, which would have taken too long for the Chancellor’s plans. In fact, as I understand it, tax credits can be amended only through the Tax Credit Act 2004, which stipulates the use of affirmative statutory
instruments to change them. I do not know whether the Government of the day knew that they were creating an elephant trap by so stipulating, but, as events transpired, they most certainly did. After all, several SIs under that Act were agreed by both Houses during the coalition Government, so this Government very naturally thought: why not this one? It was laid and, importantly, accepted by another place—but not, obviously, here. It is worth repeating that your Lordships did not throw it out—to which, of course, there is no recourse.
I hope that I have not taken too long to explain why I think that my noble friend Lord Strathclyde was asked to solve a problem that did not exist. None the less, being him, he stuck to his brief that the existing conventions might soon break down. He has come up with a positively brilliant solution that can reasonably be worked upon. I would look at it perhaps as the basement of a future building. There is much to be thought about, as evidenced by the Hansard Society’s brief and Professor Russell’s comments from the Constitution Unit—not least, how do we cope when your Lordships consider a statutory instrument before another place? Will another place—this has already been mentioned in this debate—be able to use a deferred Division? Both these things need a lot of thought. Another vote in another place will settle the matter once and for all, without a further vote in this House.
The real damage on 26 October was that although everyone agreed that tax credits are a financial matter, the relevant SI cannot be given a Speaker’s certificate of financial privilege. I therefore ask my noble friends whether the Speaker should have this power and whether it should now be added to my noble friend’s preferred solution number 3.
7.30 pm