Many of us took great hope from the resistance that was shown in the House of Lords in recent weeks.
When the bill came back to the Lords on Tuesday, we were all hoping against hope that peers would take a stand and dig their heels in by insisting on sending their seven amendments back to the Commons.
We lobbied the Lords and sent them a briefing here.
We asked if there had been a ‘behind the scenes stitch-up’ here‘
Tuesday’s ‘Ping Pong’ debate in the Lords poses questions that need answering.
Most of the original amendments were abandoned or changed on the day.
The only amendment that is to be sent back to the Commons next week is the one on the ‘bedroom tax’ sponsored by Lord Best.
How AND Why?
Amid all these arcane and opaque procedures, back room manoeuvres and constitutional obfuscation, we pose these three questions:
1. What actually happened to all the amendments?
2. Where does the Welfare Reform Bill stand now – is that it?
3. Where does the disabled people’s protest and resistance movement go from here?
1. What happened to the amendments?
They seem to have been sucked in to some sort ofWestminster‘black hole’, don’t they?
We had asserted – based upon our best understanding of the all the publicly available expert analysis of the position at constitutional law – that the Commons’ invocation of ‘financial privilege’ as a reason for rejecting all seven Lords amendments, outright, constituted an abuse of privilege and convention.
It appears that, in light of subsequent advice from the Parliamentary Clerks Office, that we were mistaken, though not completely.
Did the government abuse the doctrine of financial privilege for political expediency to ram the bill through on this occasion?
Even if the answer is in the negative: Is the invocation of this privilege nonetheless an attack on liberty and democracy, in that it may adversely affect the Lords’ scrutiny and revision of important statutes, by the principle’s ability to nullify and any and all amendments that are not to the liking of the ruling executive in Downing Street and this illegitimate coalition?
These issues are about as clear as a latrine to the average citizen as it gets, so let’s take it step-by-step look and break it down into digestible chunks:
The Clerks’ Note on the issue stated that the process by which the financial privilege is raised is non-partisan, and is, therefore, ‘not invoked opportunistically by the Government’.
This statement is by no means as straightforward as it may seem.
In a nutshell – it turns out that it is the increased refusal of the Commons to compromise by waiving it’s the privilege that may or may not constitute an abuse of privilege and constitutional convention.
The Lords’ acceptance of the right of the Commons to refuse to waive its privilege is, it transpires, established by precedent.
The current constitutional controversy, then, turns on the extent to which this refusal is now being asserted by the Commons and whether its use is now emasculating, or even rendering obsolete, the House of Lords’ scrutiny and revision of important statutes.
After all, why bother having a debating chamber full of peers when the government cares not one jot about what they have to say and completely ignores its input as and when it feels like it?
Frankly, it makes a laughing stock of their Lordships’ House.
I mean, what are they for?
As far as disabled people living through the greatest attack on their dignity, human rights and social welfare are concerned, their Lordships have proved themselves to be nothing more nor less than a toothless paper tiger.
If that upsets certain ermine-clad sensitivities, then good! It bloody well should!
As a House of legislature, you are toothless, ineffectual and pathetic.
You are hardly a ‘bulwark’ against anything, let alone the arbitrary abuse of power by an unelected junta, controlled by vandals, who enjoy the support of just 23% of the popular vote; who enjoy NO MANDATE of the people, especially those of us who live ‘north of the border’!
You have proven yourselves to be utterly impotent in the face of the greatest assault on our civilisation since the welfare state was established in 1945.
Your words which, though fine and true and imbued with much wisdom and compassion, were touching and we welcomed them, but mean little to us now.
They will not protect us from the onslaught we face now or the hurricane to come in which many of us will perish.
What was required was solid action in defence of our human rights.
We needed the whole House of Lords, in the words of one of them on Tuesday, to say: “This far, and no further!” and to make sure that those words did not return to the House null and void – but accomplished what they were said for and ensured the continued safety and well being of disabled people!
Quite simply, we needed you to KILL THE WELFARE REFORM BILL.
You have abjectly failed the disabled people of this country. Of this there can be no qualification.
The House of Lords is unfit for purpose and you might as well be completely scrapped for all the good that you seem to be utterly are incapable of DOING.
YOU – on the Labour Front Bench! With all your legal expertise and know-how, with former Lord Chancellors on your team – do you seriously expect us to believe that you were not fully cognisant – that you could not have foreseen this outcome and were thereby unable to put a stop to it before it came to pass?
At what stage did you take legal advice?
What advice were you given?
Is it not the case that you knew fine well and that you were advised that you could have rejected the bill in its entirety and then sent a series of amendments back to the Commons in order to guarantee that no harm would befall us, the victims of this unconscionable bill?
We say that you did know and that this was NOT the ‘ambush’ that you have made it out to be to us, the public, or the mass media!
Yet you were either willingly or negligently decided to pursue a path which you knew would end in failure, in all likelihood because you yourselves have behaved in like manner when you were in government. God only knows but we want ANSWERS!
You cannot say that you did your best or that you were driving blind.
You pursued a path that would make you smell of roses, knowing fine well that we were going to be landed in the SHIT.
Now we learn here and here that we are to be enslaved, following the inaccurate and fraudulent DWP/Atos Work Capability Assessments and disabled people will now be forced into “Arbeit Macht Frei” for their benefits – or else be cut off and die! And God help those of us who cannot keep up with the work detail!
All this you could have prevented at least for one year forcing the barbarians to invoke the Parliament Acts. But you chose to fail us.
If the Lords were able to hold out against you lot when you were in power over FOX HUNTING then surely to God you could have held out for DISABLED PEOPLE in opposition!
It’s US who are being hunted now! OPEN SEASON!
Too little! Far too late!
We hold you responsible for this!
If it is not the case – it incumbent on you to present YOUR case for the defence!
The legal and constitutional issues – analysis
The Clerk of Legislation (who is independent) will:
‘…. designate Lords amendments having financial implications, and this matter is submitted to the Speaker to draw the issue to the House’s attention when the Lords amendments are introduced for consideration….’
‘Should the Commons choose to agree the amendments, they will ‘waive’ the privilege, and if they do not agree them, they ordinarily offer (in the Reasons Committee) the privilege as the reason for disagreement (even when there has been substantive debate on the matter and the actual reason is a policy disagreement)….’
‘The upshot of this is that under the authority of the Speaker, the Clerks will decide whether the financial privilege is engaged by asking whether a bill has ‘any financial implications.’
This ‘test’ that is used is the ‘wide reading’ that Dr King criticised in his original post and which was stated by Lord Strathclyde, thus:
‘Any amendment with implications for public expenditure might involve privilege.’ (HL Deb, 2 February 2012, col.1673).
Former Tory Chancellor of the Exchequer Lord Nigel Lawson had objected to this claiming that though the privilege existed, it was a convention that it had been invoked ‘sparingly’ rather than ‘promiscuously’: (Col.1674).
In fact, as the Clerk pointed out in his Note – over the last three years 223 out of 266 Lords amendments with financial implications have been accepted by the government.
Dr. King stated:
The standard proposed by Lord Strathclyde would, if respected, radically constrict the range of matters over which the second chamber could reliably exercise its revising and scrutinizing function (though not from debating or passing resolutions on such matters, or examining them in committees: Erskine May, 23rd edn, p.918).
Such matters would include health care, education, university fees, pensions, social security, the courts service, prisons, immigration, and so much else.
He poses the question:
‘Does the privilege require that the Lords should avoid amendments on any such matters, or worry that any debate on them will ultimately prove not only futile, but unworthy of response and possibly even be unconstitutional?’
In his important update published on Tuesday 14th February King stated that, subject to the following discussion regarding the existence of precedents, he stands by this critique.
Constitutional precedents and the doctrine of Commons financial privilege
King writes that:
The Commons may choose to waive the privilege in specific cases, and that is a political decision.
Its previous forbearance seems to have made the system work to the acceptance of both Houses.
The Commons’ more recent approach (not to waive the privilege) calls the whole procedure into question.
He poses the following question and explores the answer:
Is the financial privilege being relied upon to disagree with Lords amendments more often in recent times?
‘The Clerks’ Note was accompanied by a chart setting out a range of recent precedents in which financial privilege was engaged, in many cases waived, but in a number of cases not waived.
‘ drew attention in my original post that there had been a recent revival in the reliance upon privilege.
‘The reaction on the Lords in this and earlier recent cases, and reports of the Labour Party seeking legal advice in respect of this particular instance, suggests great unease about this
(not about the actual effect of the bill on us, then!)
In a note from the Clerk of the Parliaments prepared for the Leader of the House of Lords and filed with the House of Lords library on 10 February 2009, it is reported that between 2000-2008, the privilege was designated as engaged in respect of 335 Lords amendments (with 154 of these in the 2007-2008 period alone).
Yet between 2009 and 2012, there have been (according to the Clerks’ Note) 266 Lords amendments where the financial privilege was in play. Between 2000-2008 privilege was offered as a reason for rejecting amendments in 42 cases, whereas between 2009-2012 it was offered in 43 cases.
Further, in my own search of all of Hansard since 1900 for references to ‘financial privilege’ (an imperfect proxy but relevant to where its use has been discussed in Parliament), 83 hits are returned between 1900-2000 (mostly condensed into the years between 1960-2000), and 54 are returned from 2000-2010. The claim that there has been a surge therefore has clear support.
The causes for this may be diverse and the recent trend might be too brief to assert long-term implications, but it remains an important snapshot.
On the other hand, having analysed many of the debates in those pre-2000 cases, I have confirmed that the privilege was invoked reasonably consistently, if much more sparingly, mostly from the 1960s onwards, in respect of a range of social welfare legislation.
This was true of bills relating to social security and pensions (Social Security Pensions Bill (1975), and Social Security Bill (1989)), housing, education (Education (Grants and Awards) Bill (1984)), health care reorganization (National Health Service Reorganisation Bill (1973), dental charges (National Health and Medicines Bill (1988)), and a number of other similar bills.
I have analysed the debates in at least fifteen such precedents (representing the substantial bulk of the relevant total).
I frankly concede that they for the most part indicate that the Lords have, in that period, and with a few isolated protests, accepted the claim of privilege in respect of bills relating to expenditure on social welfare policy.
This is a material addition to my earlier post, and it supports the view that the reliance on the privilege in disagreeing Lords amendments to the Welfare Reform Bill is not a strong break with past (if sporadic) practice.
The constitutional issue for today
The key present issue is the frequency of reliance upon the privilege in disagreeing to Lords amendments, and whether the Commons should revise its practice in light of the constitutional policy concerns raised in my original post and by others.
Will this reliance on the privilege adversely affect the Lords’ scrutiny and revision of important statutes?
Some have argued in correspondence that the Lords enjoy the right to offer amendments that infringe the privilege, and the Commons can and normally does waive privilege when agreeing them.
So the Lords need fear neither constitutional impropriety nor irrelevance when offering amendments on privileged matters.
Yet the problem remains that if proposed Lords amendments are opposed by the Government sponsoring the bill, then any debate may have an air of futility.
The more frequently the privilege is invoked as a reason for disagreeing Lords amendments, the more such fears would be well-founded.
Related concerns have been raised by peers on a few different occasions: in addition to some comments noted in my first post, see e.g. HL Deb, Vol 712, c.26-29 (Lord Jenkin); HC Deb, Vol. 463, c440 (Question of George Young to Harriet Harman); HL Deb, Vol.694, c708-9 (Lord Oakshotte); HL Deb, Vol 705, c1292 (Baroness Miller); and esp. HL Deb, Vol 734, c160-161 (Baroness Thomas), though contrast HL Deb, Vol 734, c161 (Baroness Hollis, defending the role of debate where privilege engaged).
The right of the House of Lords to reject an entire bill stands – but it must be asserted by the Third Reading of a bill
Further, if the Lords wish to assert their (established) right to reject the entire bill, then the way in which that right would need to be exercised may itself stifle debate.
After approving the bill (with amendments) at the Third Reading, it is difficult and perhaps even impossible for the Lords to reject the bill in its entirety at the ping-pong stage.
The option to reject a bill would, it seems, ordinarily need to be exercised before a series of amendments can be sent to the Commons for consideration.
(Don’t worry – we’re toiling with this gobbledegook too. So you reject the bill first and then send your amendments. Right. Clarification and explanation needed here!)
Is the privilege being ‘abused’ in this case?
It is not in the following two senses: it is not invoked opportunistically by the Government or the Speaker, and there are a range of precedents supporting this type of use of the privilege both recently and from the mists of time.
However, the reaction in the Lords and press suggest that this is more than business as usual.
It is more plausible to say that any constitutional abuse lies in what appears to be the more frequent refusal to waive the privilege, the possibility that the financial privilege has extended well beyond its initial purpose, and that the Commons’ (unquestioned) right to define the scope of the privilege is liable to be extended very widely and in an unchecked manner.
The recourses open to the Lords
Dr King writes: I originally suggested two recourses were open, but this claim needs revision.
The Lords may adopt a resolution stating that
(i) this is not be regarded as a precedent or
(ii) a resolution protesting the application of the privilege in this case
‘In light of the twentieth century precedents, both of these options, though available, will seem ineffective.
The option of a resolution may still stand, in my view, but as a way to protest the general trend identified above and its constitutional implications.
Rejection of the entire bill
The Welfare Reform Bill has been through the Third Reading in the Lords and so rejecting this particular bill is apparently not a realistic option.
It remains an option for other bills.
Amendments in lieu of amendments:
The Clerks’ Note clarifies an additional recourse not mentioned in my initial post, namely that the Lords could offer amendments in lieu of their initial amendments when the Commons’ disagreement is communicated.
Yet, by convention, the Lords will not offer amendments that ‘invite the same response.’
There is thus an option to continue the dialogue in this fashion, and the utility of such dialogue would depend on how cautiously the convention of ‘not inviting the same response’ is observed or interpreted by the Lords.
There have been objections even by peers whose amendments have been rebuffed on privilege grounds to trying to use this option to reassert an amendment which is essentially a matter of privilege.
Yet the Clerks’ Note shows that this option has been pursued in recent years, the precise form of these amendments not being known to me.
2.Where does the Welfare Reform Bill stand now – is that it?
So there, in some considerable detail, you have it.
All of the above discussion is, as they say ‘academic’ to us now.
We have been dropped well and truly in the shit, brothers and sisters.
As I wrote in an earlier post when relating my correspondence with my local MP:
Why has Ed Miliband and the Labour front bench failed to attack the
Government’s actions? How can he call on peers to kill the Health and
Social Care Bill when it could just be disposed of by the coalition in
the same manner?
Why is Labour always on the backfoot in standing up for social justice
and what is right. It always seems to be a case of “too little” and
definitely “too late”.
The bill should have been rejected at the Third Reading and a series of amendments sent to the Commons at that stage.
The government has promised to reject the ‘bedroom tax’ amendment as soon as it goes back to the Commons next week after MPs return from ‘half-term’.
That is what we fully expect will happen.
It is too late for the Welfare Reform Bill.
But NOT for the Health and Social Care Bill or the Legal Aid, Sentencing and Punishment of Offenders Bill.
They must be rejected in their entirety before such a disgraceful fate meets them. Both of these equally foul and universally unwanted pieces of legislation will adversely and disproportionately affect disabled people more acutely than the wider population.
They are, put quite simply, based on the neoliberal ‘need’ to cut the deficit and make us suffer and pay for the mistakes, gambling debts and lifestyles of the obscenely rich and greedy who are suffocating our country and our planet, and NOTHING ELSE!
We await with interest what Labour will do.
Judging by past performance Labour will let these pass too, their peers will pass go and collect 300 quid a day in expenses whilst we continue to live in abject poverty with a hopeless future in a cruel, hostile and unforgiving world.
There will be more destitution, homelessness on our streets and preventable early deaths through suicide and neglect!
They had it within their power to reject this bill and all it entails.
Just let’s say that, come the revolution, you had better make yourselves scarce.
“Angry” does not even come close on a scale of 1 – 100!
Disabled People and Cameron’s visit to the Scottish Parliament in Edinburgh today
At this time it must be stated that there is NOTHING that the disabled people of Scotland could regret by us becoming an independent country!
By discarding the House of Lords and Westminster and having control over our own resources and revenues, we would ensure a better future for all of us.
We would have the power to protect all of our people, the elderly, the young, the infirm and all people with disabilities.
ANYTHING is better than being laid at the mercy of these barbarians at Westminster.
As for the Liberal Democrats we wish to repeat the words of Dr. Tobias Abse, an expert in Fascism from Goldsmith’s College, University of London:
“Doubtless, the permanently disabled and those dying of cancer will be reassured to learn that “Many Liberal Democrats have been uncomfortable voting with the government, but feel forced to do so if they are to abide by their coalition commitment to bring the deficit under control” (Coalition’s welfare reform plan hit by £1.6 bn Lords defeat, 12 January). Some of us were under the misguided impression that the “only obeying orders” defence, now being used by Liberal Democrat MPs and most Liberal Democrat peers, was ruled out at the Nuremberg trials.”
“Even if, like Clegg and his crew, one were to assume that Keynes was wrong and Herbert Hoover and Heinrich Brüning were right to pursue deflationary austerity policies in the middle of a world depression, one might suggest Trident could be cut and spending on the Olympics and the jubilee reduced or cancelled rather than making the most vulnerable in society pay for the bankers’ crisis.”
The passing of the WRB has made independence an imperative for Scotland in my own personal view – though many in our movement may disagree with me.
For us, the WRB is in fact a WMD. You have just dropped it on Scotland and we will forever HATE YOU FOR IT and will fight back against you through any means at our disposal.
The criminal Cameron said in Edinburgh today that his “hope and wish” was that Scots would vote to stay in the United Kingdom.
He had the had the further effrontery to state, in true Orwellian ‘Newsspeak’ :
“Whether it’s ensuring the same disability benefits for those in need, from Motherwell to Maidstone, or ensuring that the resources of 60 million taxpayers stand behind our banks.“
“Whether in Edinburgh or London, the United Kingdom is a warm and stable home that billions elsewhere envy.”
“I’m often reminded that I’ve been more successful in getting pandas to the zoo than Conservative MPs elected in Scotland” he joked.
“So, more than a little humility is called for when any contemporary Tory speaks in Scotland. In fact, some say it might be wiser not to speak at all.”
It would have been wiser never to have set foot on Scottish soil, you disgust us all to the very core of our beings!
“It is time to speak out, whatever the consequences, because something very special is in danger – the ties which bind us in the country we call home.” he said.
No! Cameron! It’s time for US to speak out for disabled people who you have killed and are killing with your cuts, as Alex Salmond did today!
“Mr Cameron said the UK enjoyed “solidarity”, adding: “When one part of the United Kingdom suffers a setback, whether it’s a drought or a flood or severe weather or economic dislocation, we are there for each other.”
We say to Cameron – The only “solidarity” you know is with your rich neoliberal brothers in The City of London and the ‘Captains of Industry’ in the CBI who are bleeding disabled people and the other 99% of the UK to death!
We also say: The Scottish people will always be there for our neighbours in England and Wales and all who of our neighbours who need our help! It is we who practically invented the idea of solidarity in these isles, with our national bard, Rabbie Burns!
We don’t need to be governed by you, to be there for others, for brothers and sisters either here at home, in England, Wales, Ireland or anywhere else “the world o’er”!
As our friend, ally and staunch supporter of Black Triangle, Willie Black, protesting Cameron’s visit to the Scottish Parliament told STV News today:
“We will harass them. This is their poll tax period. The opposition to the Tories will grow over the life of this Parliament as they affect more people’s lives.”
“We are marching today to support everyone across Britain that wants to oppose the Tories.”
Willie added: “David Cameron has no mandate. He has patched up a coalition with the Liberal Democrats, who deceived the people in the vote.”
“This is going to grow. People’s anger will increase and every time they come we will be right in their faces showing our opposition.”
Which brings us neatly on to our third question:
3.Where does the disabled people’s resistance movement go from here?
To be continued…………
Edinburgh protest report here: http://local.stv.tv/edinburgh/news