One part of the government’s flagship Brexit legislation is now nearing its parliamentary endpoint after the EU (Withdrawal) Bill completed its report stage in the House of Lords in early May. The UK parliament’s second chamber inflicted 14 government defeats
on the bill, which sets out arrangements to facilitate Brexit. It will
soon return to the House of Commons for these various issues to be
considered.
The Lords’ interventions have led some to claim that this is a “peers versus the people power grab”, or even that the chamber is behaving in an “unconstitutional” manner. But while the current situation may be unusual, it’s not for the reasons many commentators claim.
There have been many past standoffs between governments and the House
of Lords, some far more serious than this one. The most famous clashes
occurred a century or more ago under Liberal governments, including over
the 1832 Great Reform Act and Lloyd George’s 1909 “people’s budget”. The largest recorded annual number of Lords defeats
– 126 – occurred under Labour in 1975-76. Defeats under the Labour
governments of Tony Blair and Gordon Brown were commonplace – for
example there were 12 on the 2005-6 Identity Cards Bill.
A changed chamber
The novelty today is that a Conservative government is suffering
similar treatment. From the dawn of the modern party system until most
hereditary peers were evicted in 1999, the Conservatives dominated the
House of Lords, meaning their governments got a relatively easy ride.
When David Cameron first entered Downing Street in 2010, his position in
the Lords was protected by the coalition with the Liberal Democrats –
who in practice are now the “swing voters” in the Lords. But this
changed after the 2015 election, making clashes between the
Conservatives and the Lords seem inevitable. The first such showdown came over former chancellor George Osborne’s attempts to cut tax credits, which he dropped following opposition from the Lords.
So the politics of the Lords, and crucially how it is seen, have changed. Since 1999 it has been a chamber under “no overall control”,
where Conservatives and Labour hold roughly equal seats, and the
balance is held by the Liberal Democrats and large numbers of non-party
“Crossbenchers”. This creates, for the first time, the ability for a
centre-left majority to coalesce against a Conservative government.
As the New Statesman
recently noted, this means that the Lords has gained new enemies – most
notably in the right-leaning press, and some sections of the
Conservative party. To a lesser extent it has also gained new friends.
The fact that the Lords is now derided by some who previously supported
it does not necessarily indicate that its behaviour has worsened, just
that the politics have changed.
The Brexit context
The other big novelty to these recent events is the context created
by the 2016 EU referendum. MPs as well as peers risk criticism for
thwarting the “will of the people” if they attempt to stand in the way
of Brexit. But both chambers approved the triggering of Article 50,
starting the process of taking the UK out of the EU, and the recent
Lords amendments do not seek to reverse the process. Indeed, a Liberal
Democrat amendment proposing a second referendum was
The defeats instead relate to implementation issues, such as the
degree of freedom the government should have to amend UK legislation
post-Brexit without parliamentary scrutiny, and aspects of the Brexit
deal itself. Here all parliamentarians have a difficult line to tread.
The referendum supported the principle of leaving the EU, but the detail
of how that would be achieved was inevitably left to the government and
parliament. Final decisions will come to down to MPs.from www.shutterstock.com
Some Lords amendments have sought to flesh this out – for example
proposing continued membership of the single market or a customs union,
and ruling out a “hard” border in Northern Ireland. These issues were
not discussed in depth during the referendum campaign, but must now be
faced. Parliament cannot simply implement the people’s will, on the
detail it also has to interpret it.
Role of the Lords
When considering the Lords’ role, it’s crucial to recognise the
limits on the chamber’s power. In practice all peers can generally do is
send a question back to the Commons asking MPs “are you sure”? Where
governments are strongly supported by their backbenchers, Lords defeats
can readily be overturned, and peers usually back down. But if the
government’s support in the Commons is shaky, it may need to adapt its
policy – which is what happened with Osborne’s tax credit cuts, and
Blair’s plan to introduce ID cards.
In the complex dynamics of today’s Westminster,
peers are very aware of the divisions in the governing party’s own
ranks, and may even work with MPs to devise topics to put back on the
Commons’ agenda. This explains why, in recent years, the Lords defeats
that governments have struggled most to overturn are those which attracted support from their own backbench peers. And in the case of the EU (Withdrawal) Bill, all of the 14 defeats attracted votes from some Conservative rebels – in ten cases such rebels were in double figures, and one amendment was initiated by a former Conservative cabinet minister.
Were the Lords repeatedly to resist the Commons’ rejection of these
amendments, the critics could have a point. But so far all peers have
done is facilitate decisions by MPs on the biggest political issue of
our times. As ever in such conflicts, it is the Commons that ministers
really need to worry about, and MPs who will have the final say.
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