Green Party peer, Natalie Bennett, has tabled a series of Fatal Motions to the Statutory Instruments on Minimum Service Levels being debated at 3pm on Wednesday 6th December.
The Lords have a constitutional power to block secondary legislation (Statutory Instruments) which are delegated powers given to Ministers.
There have been 110 Fatal Motions voted on in the Lords since 1950. Only some are successful, like in 2012 when the Labour frontbench led a successful fatal motion on legal aid and the punishment of offenders.
The Lords’ Delegated Powers Committee described the Strikes Bill as a “skeleton Bill” and the draft Code of Practice in the instruments being debated impose significant new duties on trade unions, beyond the scope of the Strikes (Minimum Service Levels) Act 2023.
The Lords have the power to block these regulations, and should do everything in their power to protect workers’ right to strike. The detail of this are set out below:
The Government commissioned the “Strathclyde Review” on this question: https://assets.publishing.service.gov.uk/media/5a81ad1e40f0b62305b903cf/53088_Cm_9177_Web_Accessible.pdf
When commissioning the Strathclyde Review in 2015, The Parliamentary Secretary, Cabinet Office (John Penrose) described the Lords role in rejecting SIs as:
“By long-standing convention the House of Lords does not seek to challenge the primacy of the elected House on spending and taxation. It also does not reject statutory instruments, save in exceptional circumstances.” (See appendix A at page 25)
Strathclyde proposed three options for reform (delay, no role for Lords, clearer rules about when the Lords can defeat SIs). The Government haven’t implemented these reforms, so have chosen to retain the status quo.
The 2006 Joint Committee on Conventions report concluded that ‘the House of Lords should not regularly reject Statutory Instruments, but that in exceptional circumstances it may be appropriate for it to do so’
See page 53 onwards of the Joint Committee on Conventions report about the convention: https://publications.parliament.uk/pa/jt200506/jtselect/jtconv/265/265.pdf
Key points:
- No one is clear about what the convention is regarding fatal motions in the Lords.
- The convention is more often asserted by the government of the day
- It has been described as more of a political agreement between Labour and the Conservatives, rather than a constitutional convention, and has not been accepted by Lib Dems or Crossbenchers (see para 203) – i.e. part of Labour and Tories taking it in turns to run the country and not wanting to make life too difficult for themselves. Other parties are free to try to use fatal motions as much as they want.
- Para 217. “The Clerk of the Parliaments says, “There is no generally accepted convention restricting the powers of the Lords on secondary legislation.” There was once a loose convention against voting down SIs, but no longer.The power to reject has been used with restraint; motions are often either couched in non-fatal terms or withdrawn after debate.327 But codifying this would not be much of an achievement. “
- Para 220. “The Clerk of the House of Commons agreed with the Clerk of the Parliaments in this area. He saw nothing wrong in the Lords rejecting an SI, unless it were to embody a manifesto commitment.”
The Committee set out examples of when it would be appropriate for the Lords to reject SIs:
Para 229. “For the Lords to defeat SIs frequently would be a breach of convention, and would create a serious problem. But this is not just a matter of frequency. There are situations in which it is consistent both with the Lords’ role in Parliament as a revising chamber, and with Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI.
For example:
b) when the parent Act was a “skeleton Bill”, and the provisions of the SI are of the sort more normally found in primary legislation”
The Lords’ Delegated Powers Committee described the Strikes Bill as a “skeleton Bill” and the Labour regret motion says ““but that this House regrets that the draft Code of Practice imposes significant new duties on trade unions, beyond the scope of the Strikes (Minimum Service Levels) Act 2023;”
For these reasons, alongside the impact the instruments will have on workers’ rights, we can say this is an “exceptional circumstance” which justifies annulment. The Lords should not allow the government to go “beyond the scope” of the enabling Act.
Baroness Jones of Moulsecoomb 