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.
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.
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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 defeated in the Lords.
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.
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.
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.