Thursday was the most alarming day I’ve spent in Westminster. More so than the march against the Iraq war or the Countryside Alliance protest, the atmosphere was intimidating. It felt safer to stay put in the Palace of Westminster, and some Parliamentarians had problems getting in to do their jobs (see Clive Soley’s blog). Like others I am supportive of both the students and the police but was appalled by the actions of the few intent on gratuitous violence.
This was the backdrop to the vote in the Commons. This Tuesday the same orders will be debated and voted on in the Lords. I don’t expect the same attention or scenes in Parliament Square.
This should give the Lords an opportunity to do what it does best. At more distance from both the demonstrations and the whips, we are freer to use our expertise and experience to scrutinise and amend legislation.
This is where we have a problem. These changes are being done by secondary legislation, not by a change in the law through primary legislation. That means that these executive orders are not amendable. We have to accept or reject them. Technically we can take note, pass a motion of regret, or pass a fatal motion to reject them.
But it gets worse. By convention we do not reject executive orders. As the unelected chamber we do not consider that we have the mandate to overturn the executive in that way.
That leaves the Lords with a delicate judgement on Tuesday, if the majority do not support the government’s position. These changes are not implementing a manifesto commitment, indeed they are in direct opposition to a clear election pledge from one of the coalition partners. They will increase the deficit not reduce it (see today’s Independent). On that basis it may be possible to win the argument that this is sufficiently exceptional to overturn the convention.
My fear is that the Lords may decide that the constitutional position means we can’t stop these changes. In that case I don’t think the public will appreciate our dilemma. They will instead question whether there is any point in a second chamber if it can’t halt such a controversial measure that has attracted such acute public interest.