The European Union (Withdrawal) Bill has completed its bumpy passage through the Commons and now moves to the Lords, where the government falls well short of a majority. In this post Meg Russell explores what the Lords is likely to do with the bill, making 10 predictions and, in doing so, busting some common myths. She concludes that the bill will be heavily amended, but any suggestion that the Lords will ‘block Brexit’ is misconceived.
The European Union (Withdrawal) Bill completed its passage through the House of Commons last week. During its two-day second reading, eight days in committee on the floor of the House and two-day report stage, it got a pretty bumpy ride. In a fascinating test for a minority Conservative government, amendments were fended off on a range of issues, but various concessions were also given, and the government suffered one defeat. Now the bill passes to the House of Lords, where the numbers are far more stacked against the government. As of today, the Conservatives held just 248 out of a total 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183. In recent years this kind of party constellation has meant that even governments with comfortable Commons majorities have been frequently defeated in the Lords. So what can we expect from the second chamber on this highly sensitive bill? Here are 10 broad predictions:
Amendments are likely, right from the outset
1. There is little doubt that the bill will be significantly amended in the Lords. Even on relatively uncontroversial bills, scrutiny by peers frequently results in changes. But this is precisely the kind of bill that peers get most exercised about. The legal arrangements that it seeks to put in place for Brexit are highly technical and complex. The bill’s central purpose is to repeal the European Communities Act 1972, but at the same time to maintain legal continuity by creating a new body of ‘retained EU law’. This process in itself raises many difficult constitutional points (as indicated further below). In addition, the bill includes extensive ‘delegated powers’, allowing ministers to amend retained EU law with limited parliamentary oversight. This combination of a constitutional focus plus sweeping delegated powers, even leaving aside the disputed context of Brexit, guarantees that Lords scrutiny will be intense. It will almost certainly result in changes.
2. The full extent of change may not be visible except to those watching very closely. Although defeats in the Lords are commonplace, disputes between the government and peers are resolved amicably wherever possible. From the point of view of ministers, defeats waste time, create bad feeling, and can be politically embarrassing. It is hence far better, if defeat looks inevitable, for ministers to offer concessionary amendments. A good example was analysed in our recent book on the legislative process: the coalition government’s Public Bodies Bill. This bill contained very extensive delegated powers (to abolish quangos) and was fundamentally altered in the Lords. But despite agreement of over 100 Lords amendments, there were just four defeats. Most major changes were achieved through ministers offering amendments themselves, or accepting non-government amendments. On the EU Withdrawal Bill we saw this same pattern in the Commons – for example ministers accepted amendments from Procedure Committee chair Charles Walker to enhance parliamentary scrutiny of delegated powers, and proposed its own amendments to limit when such powers could be used.
3. But defeats are probable, and it would not be surprising to see these at committee stage. The commonest pattern during Lords consideration of bills is for amendments to be discussed at committee stage, for ministers to agree to think about them, and for peers to force votes at report stage or third reading only if dissatisfied by the government’s later response. But on issues where tension is running high, and ministers appear intransigent, votes at committee stage do often occur. Such committee stage votes are often described by the media as ‘unusual’ (e.g. see here), but this is not the case. Over the period 1999-2012 there were 1518 votes in the Lords on legislation, 330 of which were at this stage. Of these, 73 resulted in defeat. If the Withdrawal Bill is defeated at committee stage we can expect newspaper headlines claiming that this is ‘unprecedented’ interference from peers. But, take note, this will not be true. Greater numbers of defeats can nonetheless be expected at subsequent stages, on matters where ministers fail to offer enough ground.
What Lords committees say will be key
4. The Lords will listen to its select committees, and we can expect significant criticism from the Constitution Committee. In line with the House of Lords’ general interest in constitutional matters, it has influential specialist select committees which will report on the bill. The Constitution Committee considers the broad constitutional propriety of legislation, and issued an interim report on the EU Withdrawal Bill last year. It has since been considering the bill more closely, and is due to publish its verdict in the next few days, before Lords second reading. The interim report stated that the ‘multiple ambiguities in the Bill are deeply problematic’, and described the extent of delegated powers ‘breath-taking’, ‘unprecedented and extraordinary’. Relatively little has changed on these matters in the Commons, so a critical report can be expected. Indications of the committee’s concerns can be found in its recent public evidence sessions, including the one with ministers held on 13 December. These highlighted the ambiguous status of retained EU law (seemingly neither ‘primary’ nor ‘secondary’, creating problems of interpretation), the proposed exclusion from EU retained law of the Charter of Fundamental Rights, the lack of clarity about the courts’ powers to refer to rulings of the European Court of Justice, and the ongoing arguments about post-Brexit devolution.
5. Committee interventions will also drive objections, and likely changes, on delegated powers. The highly-regarded Lords Delegated Powers and Regulatory Reform Committee (DPRRC) similarly promises a full report before second reading. Its interim report complained that the bill includes ‘wider Henry VIII powers than we have ever seen’ (the term used to describe ministerial powers to amend primary legislation with limited parliamentary oversight) and considered some of these to be ‘wholly unacceptable’. Although scrutiny of delegated powers was improved somewhat as a result of amendments in the Commons, expert observers consider these changes inadequate, and the committee will probably agree. One key place to look for guidance on changes that the Lords is most likely to press for will hence be the reports of these two key committees.
The Lords will not ‘block Brexit’
6. Media or government suggestions that the Lords could use this bill to ‘block Brexit’ are wildly exaggerated. There have been various recent stories in some newspapers claiming that the Lords’ scrutiny of the bill somehow jeopardises the whole Brexit process. This is largely scaremongering, or perhaps just paranoia. While the bill is likely to be heavily amended, all of the points above concern improving legal clarity and scrutiny processes, not reversing Brexit. In some cases the government has indicated that it welcomes suggestions on how to deal with these unprecedented, knotty issues, and such technical questions are standard fare for the Lords. The chamber gets far less involved in big political questions, on any bill. On this bill, which is wholly procedural, there is admittedly some blurring between the political and the technical. Hence the Lords may push further on the ‘meaningful’ parliamentary vote at the end of the process, while some peers will also argue that the issue of a second referendum is also a legitimate process issue. But in general defeats on these kinds of bigger issues are less likely than many assume, for two key reasons, which follow.
7. Numbers in the Lords make defeats on obvious ‘anti-Brexit’ amendments very unlikely. Those anticipating House of Lords wrecking tactics point to outspoken anti-Brexit comments by certain peers. But as already indicated above, the Lords contains almost 800 members (a problem that some are keen to deal with). It hence takes far more than a handful of outspoken critics to win a vote against the government. In particular the Liberal Democrats, the most obviously anti-Brexit party in the chamber, are sometimes criticised for holding 100 Lords seats. But this is transparently well short of a majority. To build a winning Lords coalition against the government requires not only Lib Dems, but sizeable numbers of Crossbenchers, and crucially, the support of Labour. The position of Labour’s frontbench can fairly reliably the imputed from its positions on the bill in the Commons. These were carefully chosen, and the party for example abstained on the amendment demanding a second referendum. We can conclude that out-and-out attacks on Brexit by (a minority of) peers will not succeed unless, of course, Labour changes its position (see point 10 below).
8. The Lords will also be constrained by convention, and deference to democratic outcomes. The fact that the Lords is constrained by conventions regarding its relationship with the elected House of Commons is well known. Most obviously, the chamber does not reject government bills in their entirety at second or third reading (except in truly exceptional circumstances, which will not apply in this case). Nor does the Lords normally pass ‘wrecking’ amendments. Hence it is essentially inconceivable that the Lords would ‘kill’ the EU Withdrawal Bill. While it is frequently stated that there is a pro-Remain majority in the House of Lords, it is not just peers’ personal political beliefs (or just the party whip), that determine voting outcomes – it is also their general deference to the elected chamber. In this case the pressure is doubled – peers must take account not only of the House of Commons’ view, but the outcome of the 2016 referendum. The referendum result even constrained some MPs from speaking their minds, and on balance peers’ unelected basis is likely to make them more, not less, deferential (for those who doubt this, the chamber’s behaviour over the Article 50 bill offers a good guide).
There will likely be more cooperation with the Commons than conflict
9. Peers are likely to press hardest on issues where there was greatest concern in the Commons. In some ways the Lords doesn’t just speak for itself, but to an extent for the Commons too. Any Lords defeats must be sent back to the Commons, so those which ‘stick’ are mostly on issues where MPs (particularly government backbenchers) have concerns. In debate in the Commons, numerous issues were raised but not resolved. Some of these were pushed to the vote through amendments, but others weren’t. When votes took place, many outcomes were very close. Peers will be watching closely, and many MPs welcome this. At the bill’s later stages in the Commons there were numerous calls for peers to press the government further on outstanding issues. For example, chair of the Commons Brexit committee Hilary Benn suggested that ‘Despite the changes that have been made, [the bill] remains deeply flawed, and their lordships will have a lot of work to do as it passes down the corridor’. There are good reasons why the system works this way. Not only do peers have greater technical and legal expertise, but by receiving a bill after the Commons they can also extend discussion on issues where ministers’ previous explanations were unconvincing. They can benefit from wider public and specialist debate which emerged during the Commons stages. Those issues on which the government is under greatest pressure are ones where peers threatens defeat, and the Commons is likely, if the question is returned to them, to back the Lords rather than the government.
10. The Lords stages offer both chambers further time to reflect, and Brexit remains fundamentally unpredictable. Political and public opinion on Brexit is constantly evolving, in part as the negotiations develop and ministers are gradually required to set out their plans in increasing detail. The issues on which the government is in greatest difficulty are clearly those where the chambers are united (because although peers could in theory block the bill beyond March 2019, due to the extended parliamentary session, they won’t – see point 8). But the government’s majority in the Commons is fragile, to say the least (depending on DUP support), and it has benefited so far from the relative caution of its own backbench rebels and the Labour opposition. Should the mood in the Commons – and possibly the country – change, peers will be very alert to that. So in these unpredictable times the EU Withdrawal Bill would still get in trouble, and the Lords could provide a useful venue for that. But if any political body is going to ‘block’ Brexit, or put major obstacles in its way, that job ultimately falls to the House of Commons.
About the author
Professor Meg Russell is Director of the Constitution Unit. She is author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013), and Legislation at Westminster: Parliamentary Actors and Influence in the Making of British Law (Oxford University Press, 2017).
A shorter version of this piece appears on the academic news site The Conversation.
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