The Energy Bill and the Salisbury Convention
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One of the issues the House of Lords has discussed is whether or not it's obliged to pass the Bill under the so-called 'Salisbury Convention', which says that the House of Lords shouldn't block Bills introduced following a manifesto commitment.
"We keep being told that we should all abide by the Salisbury convention, but the Government are betraying their own manifesto."
Lord Foulkes of Cumnock, 14 October 2015
"…the Government have taken the Salisbury convention and stretched it to its maximum. It is true that there is nothing specific in the Government's manifesto about the sudden alteration of a policy that was discussed at length following a great deal of consultation not that long ago."
Baroness Worthington, Shadow Spokesperson on Energy and Climate Change, 14 September 2015
"This [change in policy] was a clear and unambiguous manifesto commitment."
Lord Bourne of Aberystwyth, Parliamentary Under Secretary of State for the Department of Energy and Climate Change, 22 July 2015
The Energy Bill currently before Parliament has three main goals, as explained by the government:
"to continue to support the development of North Sea oil and gas, change the law so that local authorities decide onshore wind applications and end any new public subsidy for onshore wind specifically in relation to the Renewables Obligation".
Closing the Renewables Obligation—a major source of subsidy for renewable energy—to new onshore wind farms a year earlier than originally planned has been particularly controversial. This is the policy referred to in the quotes above.
As they indicate, there's debate over whether or not the House of Lords is obliged to pass this measure because of the reference to it in the Conservative general election manifesto.
On wind, the manifesto said that "we will halt the spread of onshore windfarms". To that end, the Conservatives promised to "end any new public subsidy for them".
Given the overall objective, it seems reasonable to read no "new public subsidy" as meaning no "new subsidy payments".
But if this is what was meant, it could have been clearer in the manifesto text. The interpretation that "new public subsidy" meant "new public subsidy scheme" is also tenable.
So it's not quite right to say that the removal of the Renewable Obligation to new onshore windfarms was a "clear and unambiguous commitment"—as we said last week.
The Salisbury Convention limits the powers of the House of Lords
The idea that the Lords will let the government pass laws to honour its manifesto commitments, even if they disagree, is generally known as the Salisbury Convention.
The Salisbury Convention is one aspect of the general rule that the House of Commons has 'primacy', and must be able to "get its business" through, although the House of Lords is entitled to ask it to "think again".
The convention has been defined as
"an understanding that a 'manifesto' Bill, foreshadowed in the governing party's most recent election manifesto and passed by the House of Commons, should not be opposed by the [House of Lords]".
A cross-party committee fleshed this out in 2006 as meaning that, in the House of Lords:
"A manifesto Bill is accorded a Second Reading;
A manifesto Bill is not subject to 'wrecking amendments' which change the Government's manifesto intention as proposed in the Bill; and
A manifesto Bill is passed and sent (or returned) to the House of Commons, so that they have the opportunity, in reasonable time, to consider the Bill or any amendments the Lords may wish to propose."
The current Energy Bill has already passed its Second Reading. But the House of Lords is a 'revising chamber'. It's still in a position to propose amendments to the detail of the Bill, and often votes against the government on those details.
Given the importance of the changes to onshore wind subsidies to the Energy Bill, an amendment trying to undo the government's intention on them could fairly be described as a 'wrecking amendment', and so goes against the Salisbury Convention.
Are there ways around the Salisbury Convention?
The Convention is traditionally supposed to apply to proposals that had "definitely" been put to the electorate. As we've already established, the Conservative manifesto was clear on its general approach to onshore wind, but more ambiguous on what would be done with subsidies for it.
Similarly, the commitment to "continue to support development of North Sea oil and gas" wasn't a particularly definite proposal to voters, and it might seem strange to invoke it to support quite specific measures.
This isn't a new problem. It's been acknowledged for some time that "manifestos are political documents, not legal texts". The Salisbury Convention doesn't operate on a very literal reading of manifestos.
A vague manifesto reference, like that on North Sea oil and gas, is almost certainly enough. An ambiguous manifesto reference, like that on onshore wind subsidies, may well be enough, especially coupled with the very clear, overarching commitment to "stop the spread of onshore windfarms". But it's probably fair to say that this is stretching the Convention "to its maximum".
A matter of political consensus, not law
That there is disagreement about what the Lords' powers properly are reflects the uncertainties—put more positively, flexibility—of the British constitution.
The Salisbury Convention is an understanding, not a law. The formal power of the Lords to vote down a law wouldn't be affected by the convention if they were determined to bypass it (although inevitably there is academic disagreement about the legal status of constitutional conventions).
So what ultimately matters is the attitude of the current House of Lords.
The Liberal Democrats have reportedly said that they don't feel themselves bound by the Salisbury Convention, but Labour Lords said in June that they'd honour it.
The Lords still have the formal power to 'wreck' the Energy Bill, but they would certainly be open to the charge of violating the convention if they did so.
And the ultimate expression of the supremacy of MPs in the law-making process, the Parliament Acts, can always be called upon to pass laws without the Lords' say-so.