In his celebrated essay Politics and the English Language, Orwell talks about politicians calculated use of purposively vague language. Last week’s vote on tax credit reform, if you listen to Tory commentators, has precipitated a constitutional crisis in the UK. The House of Lords voted to block a piece of government legislation that, it has been argued, they had no right to block. This was due to long standing conventions about ‘money bills’. However, wading through the spin and counter-spin of various ministers, this manufactured crisis raises bigger concerns about fundamental processes of democracy, political mandates and uses and abuses of parliamentary process. And it is nothing new. It was similar processes that allowed Andrew Lansley to say of the NHS reforms “There is absolutely nothing in the bill that promotes or permits the transfer of NHS activities to the private sector.” Far from being a crisis in the Lords, the tax credit debacle represents a crisis of government. The real constitutional crisis being a Government who try to use obscure procedures to get unpopular measures through without democratic debate and scrutiny.
On writing about the political use of language Orwell states that:
“In our time, political speech and writing are largely the defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness.”
The fall out from the tax credits debacle in the House of Lords last week is a timely reminder of this. In mid September, the elected House of Commons voted to support the Government’s plans for tax credit reform by a count of 325 to 290. The legislation then moved to the House of Lords, where it’s passage was blocked last week by a vote of 289 to 272. According to the government, the Lords vote went against long standing conventions around ‘financial primacy’. This vote prompted the government to label these events as a constitutional crisis, and to initiate a constitutional review of the House of Lords.
After the vote, George Osborne, the architect of the tax credit reforms, went on record to state:
“Tonight, unelected Labour and Liberal lords have defeated a financial matter, passed by the elected House of Commons and David Cameron and I are clear that this raises constitutional issues that need to be dealt with.”
In this little snippet, we see a number of instances of euphemism, question begging and sheer cloudy vagueness. On euphemisms, witness the description as a vote on a ‘financial matter’. Questions are begged in the stated contrast between the elected and unelected nature of the two Houses. And sheer cloudy vagueness is present throughout; for example, we are offered no detail on what these constitutional issues actually are.
Under the established constitutional ‘financial primacy’ convention, the Lords are not permitted to block government legislation that relates to taxation or public spending. So, under the convention, this Lords vote would have represented a break in that convention, if, (and only if) the tax credits reform were a piece of formal legislation. But it was not; it was framed as a statutory instrument, which is a piece of secondary legislation over which there are no financial primacy restrictions, and no governing conventions. Tellingly, when the terms of the review were announced two days after the vote the purpose of the review was to examine “how to protect the ability of elected Governments to secure their business”, and “how to secure the decisive role of the elected Commons in relation to its primacy on financial matters and secondary legislation” or plainly said, how to close the constitutional convention loophole between primary and secondary legislation.
It is in this instance that we see the real nature of the crisis as the government perceives it and it is a crisis largely of their own making. Had the government proposed the tax credit reforms as a piece of primary legislation, then the lords would have been powerless to act; they would have been governed by the Salisbury Convention, which states that the Lords will not vote down a Bill that seeks to enact a manifesto pledge on which a government was elected. But this would have meant including it in their election manifesto, whereas the Prime Minister actually stated on national television that there would be no cuts to tax credits. So the members of the House of Lords are not bound by the Salisbury convention either.
The use of statutory instruments is nothing new. The privatisation of the NHS proceeded largely unchecked because all of the privatisation measures were included as statutory instruments (Section 75) that accompanied the legislation. Privatisation of the NHS was not a manifesto promise for the Conservative Party in 2010. The use of these processes do point to a legitimacy crisis, but that crisis is at the door of a government using parliamentary process to enact legislation for which they have no mandate and no support. That is the real constitutional crisis in all of this.