The amendment to the European Union (Notification of Withdrawal) Bill in the House of Lords, and the government’s reaction to it, suggests that we have, looming on the horizon, a good old constitutional crisis. The tropes are familiar – an unelected, unaccountable house frustrating the will of the people, versus measured, thoughtful consideration of rushed legislation forced through by an over-mighty electorate. So what will happen?
There are two sides to this argument, the political and the procedural. As a former House of Commons clerk, I am more familiar with the latter, so let me address that first.
It is politics 101 that for any Bill to become law, it must be passed by both Houses of Parliament in the same form before it receives Royal Assent. Both houses have the opportunity to amend a Bill, but they must agree on them. Now, governments do not much like amendments.
The Brexit Bill, as I will call it for convenience, started in the Commons, and hundreds of amendments and new clauses were tabled for consideration. However, the government’s whipping operation was successful. Combined with a degree of supine reaction from the official Opposition, this meant no amendments were adopted and the Bill left the lower house untouched and pristine. I expect there were smiles at the Office of Parliamentary Counsel at 1, Horse Guards Road, where the government’s legal draftsmen lurk. Stage one, mission accomplished.
Then, however, the Bill went to the Lords, and their Lordships have shown a greater inclination to make changes to the text.
This, in itself, is not unusual. There are two reasons. One is a mechanistic one – Bills tend to have longer at committee stage, when amendments are considered, in the Lords than in the Commons. More significantly, though, the government doesn’t have a majority in the upper house. So far, the Lords has amended the Bill to provide protection for EU nationals living in the UK after Brexit, against the Government’s wishes, an amendment originally proposed in the Commons by Harriet Harman, the Chair of the Joint Committee on Human Rights.
So what happens next? The Commons has three options. It can agree to the amendments made by the Lords; it can reject them; or, as a via media, it can propose what are called amendments in lieu – in other words, changes to the Bill which might go some way to satisfying their Lordships but in a different form. If it chooses options two or three, or some combination of them, then the Bill goes back to the Lords. This is known by practitioners as “ping pong”.
Then what? If the amendments are returned either rejected or altered, the Lords must consider how to respond. It can accept the rejection, or insist on its amendments, and then send the Bill back to the Commons. The speed at which this is done is largely determined by the government’s legislative timetable. At the end of a parliamentary session, when Bills will fall if they are not agreed by both houses, it can happen very quickly indeed, with legislation rattling up and down the corridor several times a day.
With Brexit, time is a factor. The Prime Minister has declared her intention to trigger Article 50 by the end of March. So the Lords have considerable power in this instance. Accept our changes, they can say to the government, or we will make you miss your deadline.
(Westminster anoraks may wish to know that the authoritative copy of the Bill, known as the House Bill, is a physical thing. It is printed in black, and amendments are made in a series of colours, and written and stuck in. It’s all a bit Blue Peter. The House Bill is physically carried from one House to the other by a clerk when consideration is complete.)
This brings us to the politics of the matter. The government’s argument has been consistently that the referendum last June was the expressed will of a majority of those who voted, and that Parliament, having legislated to allow the referendum, should now respect its result. That is a powerful argument, and one which apparently convinced the House of Commons.
The government extends that argument to say that the unelected house should not frustrate the process.
The Lords’ argument is more nuanced. They will say that they are not voting against the principle of the Bill, and indeed passed it at Second Reading, but that it is both their right and duty as a revising chamber to scrutinise and improve the details of the Bill, while respecting its inherent spirit. That the House of Lords is unelected should not really be relevant; after all, the UK’s constitutional arrangements are what they are, and the Bill must pass through them like any other. A referendum, as the Supreme Court ruled in January, does not override the principle of parliamentary sovereignty.
But the House of Lords needs to be careful. The government is already impatient with a chamber in which it does not have a majority. Reform of the Lords was one of the failures of the Coalition (I worked on the committee which looked at the proposals for reform, and it was a disaster), but it does not take a particularly scheming mind to see how Theresa May could use delay of the Brexit Bill as a casus belli to return to the subject. People vs peers. 1910 all over again. Peers are, rightly, proud of the expertise which they bring to their work, but we live in a political world in which elites are not popular, and they could easily lose public sympathy if they are seen as standing in the way of the Bill.
There are undoubtedly many peers who think the electorate got it wrong last June. Perhaps they are in a majority in the Lords – it seems likely. But they have a very fine line to tread. Our populist Prime Minister has made it clear that Brexit means Brexit, and the Lords must be careful to be a candid friend rather than a roadblock.
Eliot Wilson was a House of Commons Clerk from 2005 to 2016. He tweets at @SybariteLooks.
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