In my last blog post I predicted that the Government would face about 10 defeats as the European Union (Withdrawal) Bill made its way through the House of Lords. As it turned out, there were no fewer than 15 government opposed amendments made to the bill by the Lords. The amendments are intended to ‘soften’ Brexit rather than stop it altogether, by mandating that the UK maintain closer ties to the EU after leaving than many would want.
You can read a good summary of all the amendments here. Key defeats included:
1. Insisting that the government negotiate participation in a customs union with the EU (to harmonise trade tariffs)
2. Removing the date and time of exit from the bill (to introduce flexibility should there be a need to extend the deadline)
3. Explicitly prohibiting the establishment of a hard border between Northern Ireland and the south
4. Ensuring the European Charter of Fundamental Rights is incorporated into British law.
The role of the Lords
To understand why the House of Lords is important in this process, you need to understand a little about how the British bicameral system works. Unlike the American system, where both houses are effectively equals, in Britain, the elected House of Commons has primacy over the unelected House of Lords. The job of the Lords is basically to scrutinise legislation and suggest improvements and it shouldn’t routinely oppose government bills or try to block them on political or ideological grounds. In fact, the Parliament Acts of 1911 and 1949 allow the Commons to overrule the Lords where there is an impasse which can’t be resolved. The fact that these powers have only been used 7 times since 1911 (and one those was to pass the 1949 Act) shows the importance in our unwritten constitution of both chambers reaching agreement.
Thus, even though the current Conservative government doesn’t have a majority in the Lords, that shouldn’t stop it passing legislation. For such an important piece of legislation to face such fundamental challenge in the Lords signals deep concern with the way it is drafted. Under normal circumstances these objections would have perhaps prompted the government to withdraw the bill and rethink it. But these aren’t normal times, and the tight Brexit timeline doesn’t allow the luxury of going back to the drawing board. The Lords’ rebellion has prompted accusations that they are overstepping their constitutional bounds, particularly in the Brexit-backing right-wing press, and opposing the will of the people. There have been renewed calls for constitutional reforms to clip their wings. The Lords are a mixed bunch; some are senior politicians from yesteryear including ministers from previous pro-EU governments. There is a feeling that this is their last gasp attempt to impose their worldview on the whole Brexit situation.
These votes illustrate both the strengths and weaknesses of having an unelected chamber. The Lords are unfettered by the need to ever face re-election or the prospect of being fired. Many of them are experts drawn from a wide range of fields, titans of the previous generation of politics and industry. They exercise their legislative muscles as they see fit and often cut through the populist, media-driven agendas that elected representatives must heed. But do they represent us? Are they out of touch, privileged, and defying the will of the people?
The government response
So how has the government reacted? They have declared their intention to overturn the amendments when the legislation is debated once again in the Commons. Fair enough, that is their right, but to do so they need to win the votes and there is no guarantee they will. Both main political parties are deeply divided on the approach to Brexit and so the results of any votes are unpredictable, particularly given the parliamentary arithmetic. The Conservatives can only muster a narrow majority with the support of the Northern Ireland DUP party, so if a handful of their MPs rebel and the Labour party decides to oppose them, then there is the possibility that the government will also face defeat in the Commons and that key Lords amendments will remain.
If the government does win the votes then the bill will go back to the Lords. To help avoid further defeats in the Lords, last week Theresa May appointed 9 new Conservative Lords who can be relied upon to support the party line (along with 3 Labour and 1 DUP). The fact that May is creating new peers is a sign of her frustration with the Lords – there has been a consensus that the Lords is already too large and a move to trim it over time from its current size of about 800 members to a more manageable 600 largely by not replacing peers as they retire, a policy which May previously championed.
On the other hand, if the Government is defeated, it is doubtful that Theresa May could remain as Prime Minister, raising the prospect of yet another snap election. Some reports claim that the Conservatives are already planning for such an eventuality. (Our next general election is scheduled for 5 May 2022, but an election can be called sooner by a vote of Parliament. We had a snap election in 2017 and another so soon would be highly unusual.)
Et Tu, Scotland?
In a further blow, the Scottish Parliament has voted to ‘refuse consent’ for the bill. The Scots feel that, despite concessions from the UK government, the bill as it stands undermine 20 years of devolution. Currently, while the majority of powers would be devolved immediately on exit there are a number of key areas, including agriculture and fisheries, where the UK government would retain some powers to ensure an orderly exit and consistency across the UK. Again, the UK government can ignore the Scottish vote and pass the legislation anyway but that would be unprecedented and could trigger a constitutional crisis with Scotland. The Scottish First Minister, in response, has announced her intention to begin pushing for a second independence referendum.
The state of legislative process is a reflection of the political and social divisions that Brexit has caused. The country as a whole is deeply divided, both major political parties are internally divided and squabbling, the government’s cabinet ministers are themselves divided and arguing. And the EU looks on, figuratively tapping its watch and reminding the country that time is running out.
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