Lords AV analysis: Anatomy of a compromise
A high-stakes game has been playing out in the House of Lords over the last fortnight or so. Here’s how the monumental standoff ended – and how the government ended up climbing down.
We should have known they were going to cause trouble. Charles Falconer, one of Tony Blair’s closest allies, attempted as early as last autumn to scupper the parliamentary voting system and constituencies (PVSC) bill. The legislation implements the electoral reform referendum scheduled for May 5th this year. It also contains plans to reduce the size of the Commons from 650 to 600 MPs. Lord Falconer used this to claim it was ‘hybrid’. Under hybridity rules, legislation introduced by the government can’t be considered if it also affects private interests. Experts said the idea that this applied here didn’t stand a chance, but the purpose was clear: delaying the bill. It was an early warning shot in what would turn out to be a lengthy campaign.
The key date peers were working towards was February 26th 2011. If the bill didn’t receive royal assent and become law by then, the referendum couldn’t take place on the same day as local, Scottish and Welsh elections this spring because of Electoral Commission rules. With this immovable deadline on hand, the stage was set for one of the bitterest fights the Lords has seen in recent years.
Skip this if you’ve heard it all before, but we need to get a few things straight. To become law, bills have to work their way through several stages. Usually, like the PVSC bill, they start in the Commons and then go through the Lords. The process usually takes months and, despite this glacial pace, tends to be a smooth one. Not so with the PVSC bill, which came across a critical blockage roughly halfway through its passage through the Lords.
Every bill has to have its committee stage, which usually sees it shunted upstairs to a fusty old committee room for detailed line-by-line scrutiny. Important pieces of legislation like the PVSC bill see the entire chamber become the committee. This is why it offered such an opportunity for Labour peers to delay proceedings. All they needed to do was add amendment after amendment to the various clauses to be considered. It didn’t matter that the motions were, more or less, meaningless. This was the opportunity for a mammoth filibuster, which began in early January.
This isn’t the first time controversial legislation has passed its way through the Lords, of course. So why did filibustering only become an issue now? The answer lies in a new breed of militant Labour peers – crusty old behemoths of the New Labour ilk, largely Scottish and friendly with Gordon Brown – who had recently been elevated. Brown’s stubbornness infused their spirit as these peers filibustered with aplomb. George Foulkes, Tommy McAvoy, Alan Howarth, Don Touhig: these were the footsoldiers in the great filibuster of January 2011. They talked long into the night – and, on one memorable occasion, through it. Many of these figures had only just been kicked upstairs from the Commons. They were determined to bring the more stormy tactics of the lower chamber with them.
The government’s impotence was revealed when they twice tabled closure motions in a bid to shut the filibusterers up. These caused a fuss, for under Lords rules the chair must gravely intone that “a most exceptionable procedure” has been deployed. They were tabled out of anger and frustration, an insider told politics.co.uk. And they were utterly meaningless, for the sum total of their effect was to wrap up debate on the amendment currently being addressed, not end the entire committee stage. All Labour MPs would have to do to neutralise it, therefore, is table another amendment. Which they did.
And so we come to the crisis of our tale, the moment when Lord Strathclyde and others had to make a tough call between principle and politicking. There was, despite everything, one way out for ministers to force the bill through in time. But doing so would have meant breaking the Lords’ principle of self-regulation at a stroke, lowering it permanently to the level of the Commons. The final option was the guillotine motion: a desperate last card for the coalition to play.
There was a time when this motion, which decisively wraps up debate on the current stage of the bill, was nothing but a figment of paranoid opposition politicians’ imagination. That all changed in 1881, when the first guillotine was used against Fenian MPs campaigning for home rule. Until the 1970s guillotines were used sparingly. But since then their frequency has increased, meaning whole swathes of legislation don’t receive sufficient scrutiny before becoming law.
“If such a motion was attempted, party loyalties all around would be tested,” the Lords insider added. “There would be those who would not have the stomach for it, because of the effect it would have in the long-term on Lords procedure.” David Cameron, far away in No 10, was threatening yesterday to impose a guillotine nonetheless, if a deal was not reached. Lord Strathclyde had no choice but to climb down. Ministers began talking in earnest.
Rather than sacrifice the “ancient practices” of the Lords, politicians did what politicians always do: they came up with a deal. We’re still not certain of the details, but we understand that the final size of the Commons will not be decided in stone until after the bill becomes law. Meanwhile a new inquiry overseeing the Boundary Commission’s decisions will give individual MPs the chance to challenge any especially ridiculous changes caused by the equalisation of constituency sizes.
It’s the prize Labour peers won for all those late nights, all that speechifying. In return, ministers will get their referendum. Yet this tussle isn’t going to fade away especially quickly. If anything, its legacy will be making the coalition even more determined to reform the upper House by curbing its powers still further. The troublemakers may have won the battle, but could yet lose the war.
