Constitutional Crisis? What Crisis?

29/10/2015 15:30 GMT | Updated 29/10/2016 10:12 BST

We have been told there is a constitutional crisis. The unelected House of Lords stopped a piece of legislation that had been passed by the elected House of Commons. The fact it was a piece of financial legislation and a manifesto commitment makes this position totally intolerable. The House of Lords may have to be reformed to remind these peers to do as they are told. This is the story as spun by the government, and promoted by many within the British media.

The problem is the whole crisis is fake. It is a lie. The constitutional crisis is not there. Instead, this so-called crisis is being used as a smokescreen, to deflect attention away from the cuts to tax credits.

Regardless as to the merits and demerits of the legislation, the so-called constitutional crisis needs to be clarified.

First of all there is the Salisbury Convention or the Salisbury Doctrine as it is also known. This convention - for it is not legally binding - states the House of Lords will not block any manifesto commitments from the government being transformed into legislation. It was agreed by the Marquess of Salisbury during the 1945-51 Labour Government. As Leader of the Conservatives in the House of Lords at that time, the Marquess of Salisbury noted the elected Labour Government did not have a majority in the House of Lords. He accepted the Lords did not have the right to strike down any legislation which had been a manifesto commitment.

Rolling forward to the present day crisis, members of the Conservative Government have declared repeatedly that the House of Lords has blocked a manifesto commitment. They cite the plans to cut public spending; to balance the books; to remove the deficit. While there were such manifesto commitments, there was nothing in the manifesto about cutting or removing tax credits. In fact, during the 2015 general election campaign, David Cameron stated repeatedly tax credits would not be cut. In the leaders' debate on 30 April, Cameron stated there were "no plans to cut child benefit or tax credits". While refusing to give an absolute guarantee tax credits would not be cut, Cameron stated such cuts were something he had rejected previously and he rejected them again.

Quite clearly, with regard to the manifesto commitment, there is a sleight of hand by the Conservatives. The problem for them is clear: the Salisbury Convention has not been breached. Constitutional crisis? What crisis?

The second area of concern in this so-called constitutional crisis is the House of Lords overruling the will of the elected House, especially over a finance bill. Legislation has been passed by the House of Commons in three separate readings - as with all legislation. The problem is such a claim is not wholly accurate either.

After the 1911 Parliament Act, the House of Lords no longer retained the right to amend any finance legislation. The problem with the so-called constitutional crisis is the tax credits legislation was neither a government finance bill, or even a government bill.

In introducing the legislation to cut tax credits, the government used a sleight of hand, through passing a Statutory Instrument. A Statutory Instrument allows an Act of Parliament to be brought into force without having to pass a new act. It is used to update or amend existing legislation. Statutory Instruments must be either passed or rejected by both Houses of Parliament. They cannot be amended! Over three thousand Statutory Instruments are issued each year. Debates will last no more than 90 minutes in the House of Commons due to time pressures. Prior to the blocking of the Statutory Instrument on cutting tax credits, the House of Lords had blocked a grand total of five - one in 1968, the other four were all in this century.

The first problem here for the Government is a benchmark has already been established - and one about which they were clearly not aware. The Joint Committee on Conventions, in 2006, noted delegated legislation, such as Statutory Instruments, can be blocked by the House of Lords, even if the House of Commons has approved it! There is a small corollary - the House of Lords should only reject such Statutory Instruments in exceptional circumstances.

In sum, the legislation to cut tax credits was a Statutory Instrument as opposed to a proper bill going through Parliament. The Statutory Instrument was used to stifle debate in the House of Commons, and there appeared to be a belief the House of Lords would not dare to challenge such legislation. As the legislation was a Statutory Instrument, it was not deemed to be a piece of financial legislation. Consequently, the House of Lords could fight it. The 1911 Parliament Act did not apply. And the circumstances have been deemed exceptional.

Constitutional crisis? What crisis? This whole story has been engineered to avoid the very clear point that the government tried to slide the cut to tax credits through Parliament without proper scrutiny. They have been caught in the act, and are now spinning in every possible direction to blame everyone but themselves.

Sadly, all George Osborne has to do is tie the cut to tax credits to the Autumn Statement and they will go through the House of Lords unamended. If he can get it through the House of Commons first...