Brexit Bill: Keep your eye on the House of Lords

The EU Withdrawal Bill this week passed the first major hurdle in its passage through the House of Lords, following an unopposed Second Reading in the upper house.

In a two-day debate, 190 peers rose to speak both in favour of and against the Bill, foreshadowing the significant and fractious battles that will be fought out in the upper chamber over the next month.

Having survived the House of Commons relatively unscathed, with the Government only defeated once (significantly, on Dominic Grieve’s amendment requiring the final Brexit deal to be approved by a separate Act of Parliament), the Bill will now face tough scrutiny in the House of Lords at Committee Stage, and observers should expect the Government to face a series of defeats.

The other place

The House of Lords is something of an oddity in modern British Politics; the leftover from a bygone age of aristocracy that politicians have not yet quite decided what to do with. Nonetheless, peers can and do play a vital role in scrutinising the technical merits of legislation.

As such, politicians and observers should not underestimate the important role that the Lords will play, as the revising house in the British legislature, in amending the EU Withdrawal Bill.

While peers are unelected, many are drawn from the heights of their professions, be it politics, business or law. Collectively, they command a depth of experience and expertise that the House of Commons can sometimes lack, and crucially they pride themselves on employing this expertise to amend and improve the details of complex legislation.

Here one can expect peers to take the Government to task on some of the most contentious issues surrounding the Bill, including the proposal to quit the EU Charter of Fundamental Human Rights; the inclusion of a specific exit date in the Bill; and the powers that will be repatriated from Brussels to the UK’s devolved administrations.

Peers will also be listening out for any movements in public opinion, or voices from the public that they do not believe were adequately represented in the House of Commons, which could well colour their approach to the Bill.

‘Enemies of the people’

Nonetheless, the House of Lords will not block the bill, despite what some commentators like to claim. The upper house governs itself in deference to its elected cousin, and will be wary of voting down a Bill that has passed through the House of Commons, and which seeks to fulfil a mandate provided by a public referendum.

There has been some excited talk amongst students of constitutional law that the Salisbury Convention – by which the Lords agree not to oppose legislation that has received a mandate at a general election – may not apply to the current Parliament given the Government’s failure to win a majority in June, giving peers the right to block the Withdrawal Bill.

This may be the case, but even so the upper house is wary of not overstretching what is seen to be its legitimate authority. The Strathclyde Review, which threatens to remove the House of Lords’ veto power if it steps significantly out of line, hangs over peers like a sword of Damocles, and should deter the House from seeking to block the bill.

Nonetheless, there are number of ways in which the Lords could seek to defeat the Government on specific amendments – observers should look out for Crossbenchers leading the way in attacks on the Government, as they will likely hold the balance of power in the chamber.

The real storm yet to come

While the debates in the House of Lords over the coming weeks will be intense, the Government may well be spared from more severe opposition by a defeat suffered in the House of Commons.

Dominic Grieve’s successful amendment ensures that the Government will have to bring forward a separate bill to ratify the terms of the withdrawal agreement following negotiations with Brussels. With this in mind, anti-Brexit peers may well be tempted to hold back some of their most controversial amendments for this second bill. Peers hoping to force the Government to commit to a second referendum on the final deal, or tie Britain into remaining a member of the customs union and/or single market, may be better served by keeping their powder dry for the next bill.

Regardless, observers should be prepared for fireworks in the House of Lords over the next month, and the possibility of multiple Government defeats.