Will the Lords delay Brexit?

"We may well witness the spectacle of Jacob Rees-Mogg making the case for scrapping or weakening the House of Lords, while the Corbynistas uphold its legitimacy"

Michael Mosbacher

The Commons has had its fun with the European Union (Withdrawal) Bill — the key piece of legislation which implements the referendum decision of June 23, 2016, to leave the EU. Despite muted rebellions and fevered speculation, with one notable exception the Bill came out of the Commons unscathed. The only vote the government lost, on December 13 last year, was on the former Attorney General Dominic Grieve’s amendment mandating that another statute would have to be passed approving the final terms of withdrawal.

On that occasion Grieve and 11 other Tory Europhiles marched through the division lobbies with the opposition parties to defeat the government by four votes. Tory rebellions were nearly always limited to one or two MPs — invariably Kenneth Clarke, and when two, Anna Soubry — while Labour rebellions in support of the government’s approach were more numerous and larger. Kate Hoey and Frank Field most consistently voted with the government, but other more occasional rebels included Graham Stringer, John Mann, Kelvin Hopkins — currently suspended from the Labour Party over sexual harassment allegations — and even the ultimate Labour loyalist, the octogenarian Dennis Skinner.

Now the action has moved to the House of Lords, and the government will fare very much worse there than in the other place. The Conservatives have nothing like a majority in the Lords. At the time of writing there are 248 Tories in the Lords, including 49 of the 91 hereditary peers remaining since the reforms of 1999: less than a third of the total membership of 794.

This number will rise slightly — by up to 20 or so — when a new list, due imminently, of working peers is published but it will not change the picture dramatically. What is more, many of those on the Conservative benches, such as Michael Heseltine and Patience Wheatcroft, are ardent Remainers and will do all they can to impede the progress of the Bill.

There are, of course, Brexiteers in the Lords outside the Conservative Party — or example, the Democratic Unionists and UKIP, led by Malcolm Pearson, each have three peers. There is the former leader of the Social Democrats, David Owen; there are independent peers such as Stanley Kalms, the former Tory treasurer, and the ex-Labour lifelong opponent of European integration, David Stoddart; and there is a smattering of Brexiteers among the cross-benchers. But these small platoons in no way make up for the massed ranks of the Remainers.

The Bill has had its purely formal First Reading in the Lords and its Second Reading — where the broad principle of the Bill is voted on — is forthcoming on January 30. It is extremely foolish to predict the outcome of an event which has not yet happened at the time of writing, but it is most unlikely that the Bill will not get passed at Second Reading.

The Salisbury convention — agreed between Lord Salisbury, leader of the Conservatives in the Lords at the time, and Lord Addison, his Labour opposite number after the 1945 general election which gave Labour a landslide majority in the Commons while only 16 peers took its whip — means that the House of Lords does not vote down legislation which is set out in the governing party’s election manifesto. With the Brexit Bill not only being the centrepiece of the Tories’ 2017 manifesto, but also more people in the country having voted for Brexit in 2016 than have ever voted for anything else, it seems unthinkable that the Lords would vote the whole thing down.

Yet the Liberal Democrats — who have 100 peers — have made noises about not being bound by the Salisbury convention as they were not party to it back in the 1940s, perhaps not the strongest possible argument as they have broadly followed it over the intervening 70 years. Some peers will undoubtedly oppose the Bill’s Second Reading, but not enough to prevent its passage. The trouble will begin during the Bill’s Committee and Report stages.

In the Commons government bills are subject to programme motions, which set out a fixed timetable for a Bill’s Committee, Report and final Third Reading stages. The vote on these programme motions is far more important than the vote on Second Reading which immediately precedes it — as without a programme motion a minority of MPs can use a multitude of delaying techniques to stop a piece of legislation reaching the statute books. This can frequently be seen in the Commons in the passage of Private Members’ Bills, many of which never become law — not because there is not a parliamentary majority for them but because a minority of MPs have filibustered them.

In the Lords there are no programme motions. This means that opponents of Brexit will be able to use all manner of delaying tactics to make sure that the passage of the Bill will seem like unending trench warfare. Furthermore, anti-Brexiteers will argue that, while there was a general commitment to Brexit in the Conservative manifesto, there was little detail about the exact practicalities of the process. They will thus feel at liberty to amend the Bill to ribbons.

The government will lose votes during Committee stage, not by the four it lost on Grieve’s amendment in the Commons, but in all likelihood by margins of 60 or 70. How can it respond?

It could  create many more Conservative peers, but Theresa May has been reluctant to go down this path — it has taken long enough to draw up the first list of 20 or so new Tories — and time is running out. There is talk of the Lords changing its standing orders to prevent more than one new peer being introduced per day to counter the threat of a Brexiteer flood.

In the final recourse there is the Parliament Act, which allows the Commons to force through legislation if the Lords has not passed it without amendment one year after a Bill has received its Second Reading in the Commons. In the case of the European Union (Withdrawal) Bill this would bring us to September 11, 2018, getting rather too close for comfort to the Brexit deadline of March 2019.

There is, however, a further complication of the government’s own making. The Parliament Act states that it can only be invoked in the subsequent session of parliament from when the Bill was first introduced. The government has decided to make the current session of parliament not of the usual one-year duration but instead a two-year one running until 2019. The Parliament Act can thus not be invoked in this instance without some sort of jiggery-pokery. Presumably the government would curtail the current parliamentary session early and then immediately start the next session. Such an approach may however seem unseemly and would in all likelihood provoke legal challenges, however futile they may be.

There will also be much talk of reforming the House of Lords if it threatens to delay Brexit. The problem here is that any reform which injects a democratic element into the Lords will inevitably make it more powerful in the long run as it will have greater legitimacy. Simply scrapping the Lords — long favoured by the Bennite Left and probably by Jeremy Corbyn — will be a step too far for most Tories.

Nevertheless, we may well witness the bizarre spectacle of Jacob Rees-Mogg — an arch upholder of constitutional traditionalism — making the case for scrapping or hugely weakening the Lords while the Corbynista Labour front bench upholds its legitimacy.

The government has a long battle ahead pushing the Brexit Bill through the Lords. It will have to rely on the intrepid band of experienced Eurosceptic peers, such as Nigel Lawson and David Owen, to do much of its fighting for it.

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