16 September 2020

Can the Lords defeat the Internal Market Bill – and will they?

An increasingly vocal upper chamber could assert itself against the Commons

LONDON, ENGLAND - JANUARY 21: A view inside the House of Lords as the European Withdrawal Agreement Bill is debated at House of Lords on January 21, 2020 in London, England. Britain's House of Lords is considering the European Withdrawal Agreement Bill, which is due to pass through its final stages before returning to the House of Commons. (Photo by Kirsty Wigglesworth - WPA Pool/Getty Images)

Downing Street appears to be preparing a major concession to rebel MPs over the Internal Market Bill, but will it be enough for the House of Lords? William Hague is the latest big-name Conservative peer to come out against the bill, in his Telegraph column, while his former aide and fellow Tory peer Danny Finkelstein has also criticised the move in his column in the Times.

Because the Internal Market Bill’s offending clauses (at least as far as the Northern Ireland protocol is concerned) were not in the Conservative manifesto, and indeed because they arguably treat with disdain the party’s championing of Boris Johnson’s “oven-ready” Brexit deal, the upper house has a free hand to assert itself against the bill, if it chooses. That a majority of people tell pollsters they are against moves to break international law will also embolden the Lords, who prefer to assert themselves against the elected house only when they can point to public support for doing so.

But will they? One underappreciated change in British politics is that under Jeremy Corbyn, most Labour peers didn’t recognise the authority of their party’s leader, and took their direction solely from their own leader, Angela Smith. Now that Keir Starmer is leader, how Labour peers behave and what they do about the bill will be set, in large part, by what Starmer decides to do next.

That said, I’m told that it is likely that what peers will seek to do is to codify any concession made to MPs in the House of Commons with a legislative lock that means the Internal Market Bill cannot be used to breach the border protocol without a parliamentary vote – and that means a vote in both houses of parliament, not just the Commons.

In practice, that might mean that we end up in a situation where the border protocol has two escape clauses: an escape clause for Stormont that is in practice highly unlikely to be triggered, and an escape clause for parliament that is, in practice, highly unlikely to be triggered. But that still leaves the separate question of whether there is an agreement that the EU and UK can reach – and whether, regardless of what happens to the Internal Market Bill, the United Kingdom’s trajectory towards a no-deal Brexit can be halted.