So, in the evening of Wednesday, 1 March, the House of Lords voted 358 to 256, by a majority of 102, to reject the government’s European Union Bill 2016 as it currently stands, and pencil in one single amendment:
Within three months of exercising the power under subsection (1), Ministers of the Crown must bring forwards proposals to ensure that citizens of another European Union or European Economic Area country and their family members, who are legally resident in the United Kingdom on the day on which this Act is passed, continue to be treated the same way with regards to their EU-derived rights and, in the case of residency, their potential to acquire such rights in the future.
More amendments may come, and next week there will likely be another one as a Parliamentary vote is insisted on for the final deal, but this is what matters. Hilariously, the paragraph is actually about as long as the rest of the Bill itself, and if you take out the archaic “Lords Spiritual and Temporal” and “Queen’s most Excellent Majesty” gobbledygook then it’s much longer. This was a simple Bill, doing little more than giving the prime minister the power to hit the big red Article 50 button at her choosing — a nice change from the absurdly complicated trade deals that run for tens of thousands of words, if I do say so.
The Lords, however, were not so impressed with how sparse and to-the-point it was, and insisted that the government guarantee the rights of the country’s 2.9 million Europeans. Brexit will not begin until Theresa May has the legal right to begin it, she will not have that right until the Queen gives assent to her Bill asking for it, and the Queen will not see that Bill on her desk until it has gone through the House of Lords; and the House of Lords, it seems, has decided to be obstructive. Many people have expressed much emotion over this. I have seen joyous Remainers thankful that the terrible consequences of allowing the plebs to have a say have been averted, and Brexiteers calling for the abolition of the Upper House because it didn’t lay down and let the government bully it. Disclosure: I, knowing many things about the European Union, want it destroyed and don’t regret my vote in June for an instant. Still, this is a constitutional issue — I am not fearful my precious Brexit is about to be stopped in its tracks — and I think I can speak with enough objectivity about where things are likely to go from here, and where here is, so as not to compromise my insight. I think it’s important to clear up why this happened, and what it means, and, perhaps most significantly, what it does not mean.
To start with, a quick refresher on legislative procedure. The right to initiate Bills is held by the government — that is, the hundred or so ministers of the ruling party — in the name of the Queen. Members of Parliament themselves have several minor avenues to promote their own legislation, but it’s ineffective and they rarely ever come to anything, especially if the government opposes them. The first reading takes place in the House of Commons and is purely ceremonial; at the end of the second reading some days later there is a general debate on principle. If it is voted through, it goes to a standing committee to be read line by line. The committee feeds back to the House, perhaps with a few amendments, and perhaps the House will propose more amendments during the ensuing debate; this is the third reading. The amendments may or may not be accepted by the sponsor of the Bill, and then there is a final vote before it is sent off to the Lords. Something similar but slightly different and not worth going into happens there, but if it passes, it goes off to Her Majesty for Royal Assent (which is never refused), and if it fails it will be returned to the House of Commons with all of the suggested amendments.
The government has already signalled that it is not going to accept this change, or any other. That means it will have to be voted through the Commons again when it returns in a couple of weeks (don’t get your hopes up for drama there), and will once again arrive in the Lords the same as it was before. They may vote it down again, and propose exactly the same amendments, and again, and again, and again. This is called “ping-ponging” between the Houses, and they can keep it up for a year until the next session of Parliament, in which the House of Commons will get the legal right to bypass the Lords under the Parliament Act (I forget which one).
Why do we have a House of Lords and why does it do this? Well, to answer that would be to list off all of problems in the Commons. Whole books have been written about this, but I will do what I can in a single paragraph. In short, the government is practically assured to get its way. First and foremost there is the “payroll vote” — the hundred or so ministers and all of their unpaid private secretaries helping them out in exchange for a good word in with the seniors. They may not be a majority but they are a large bloc of support the government can always rely on. Then there are the backbench MPs of the ruling party: progression in British politics today pretty much means sucking the dick of party and government higher-ups, particularly the chief whip. The rise of the career politician has been a double-edged sword, on the one hand increasing professionalism and competency, but on the other taking away their backbone and encouraging them to vote in blocs for their own advancement. The whips can make life difficult for Members if they do not vote the way they are told. The Commons also has a massive workload, and isn’t able to consider legislation as well as it probably should. Bills are not much more numerous than they used to be, but they are far more complicated and require more time to read, research and reflect on. Add that to the massive volume of letters to answer, phones to call, and other obligations of representing a specific constituency, and ministers sometimes can just hammer Bills through by overwhelming MPs. On super important issues the executive can actually blackmail the legislature: the prime minister can threaten to resign and call an election, putting all of their seats at risk (the Fixed-Term Parliament Act has made this harder than it used to be but rest assured is very much still possible). Numbers do not lie. David Cameron’s coalition government, supposedly more fragile than most, suffered only six defeats in its entire five-year history; Tony Blair was only defeated four times in his entire ten-year premiership. The statistics are truly unsettling. The House of Commons is not useless, and it is an institution I support, but it begs naivety to think it has much power to stand up to the executive — it has not since the end of the war and arguably beforehand. It matters, but not for this.
The House of Lords has few of these problems. There are usually a handful of peers with ministerial positions, but they are insignificant and selected only because they do not have to worry about constituencies or electioneering, and can work more diligently. There are rarely more than two dozen, so they do not comprise a noticeable voting bloc. Peers also have more time to consider Bills, having a lighter workload — no constituencies, and business is usually not as crowded with questions or motions. The time was not well used until recently, but the influx of career politicians like Michael Heseltine and his seeming nemesis Norman Tebbit, among many others, has given an air of professionalism, as has the virtual abolition of hereditary peers by Tony Blair. The argument he used was stupid (no peer is democratic), but it is certainly true the House is now more emboldened and invigorated. It also feels like it has more legitimacy of its own. Many are now more politically active, and the rest tend to be experts in certain subjects, like human rights lawyers, or the academics and scientists that make up the Committee for Science and Technology. The addition of crossbenchers (who have no party) has prevented any bloc from gaining an outright majority. Even if they are members of a party peers are virtually impossible to whip: they have no further political ambitions, no chance of being voted out and virtually total job security. If we return to our damned lies, it is easy to see how much more willing they are to stand up and say, “No”.
The House of Lords is under no illusion that it is either legitimate or democratic. Its role is twofold. First of all to make the Lower House think again. The Commons may say, “Yes”, the peers may say, “No”, and the Commons may once again say “Yes”, and the Bill goes through, or it may say, “No”, and put a stop to it. That is not what is happening now. As Lord Howard said, all of the arguments have already been hashed out in the Commons. No. Now, the peers are acting because they smell elective dictatorship. See, they imagine themselves as the paternal, considerate guardians of rights against an over-powerful government hell-bent on taking them away, and they are quite willing to make themselves a nuisance to safeguard minorities or marginalised groups they believe are under threat. That is what they are doing with the European Union Bill. They are not trying to stop it. Rightly or wrongly, they are trying to get the government to unilaterally declare that EU nationals living in the UK are safe.
If the Lords decides to be obstructive, and the government decides not to give in, both sides are playing a dangerous game. On the one hand — as it is most certainly doing now — the unelected House is defying a democratic assembly of the people; in this instance it is doing more than that and defying, in practice if not by intention (and it is not by intention), an actual mandate from the people themselves. On the other hand, the government is playing with fire because it is picking a fight with an expert chamber of veterans who see themselves as the defender of liberty and the forgotten voices against tyranny.
It’s easy to see this as a cut-and-dry case of the Lords being on the moral high ground. I have mixed feelings and will not try to persuade you. But I would like to at least make the case that the water is not as clear as it first appears. There is good reason to think unilateral safeguarding of rights would be naive in the moves and counter-moves of the Great Game. Here we see that an early plan put forwards by Theresa May to make mutual assurances was disregarded by Angela Merkel. There are 1.2 million UK nationals living in the EU; they are not safe, and unilateral action would leave them without anything. The aforementioned Tebbit caused an uproar with this speech yesterday, but I beg you to watch and consider it.
However you feel, I shall close this blog with what I think will happen, and I shall be brief. Labour swung the vote:
This matters because the Labour Party have said they will not oppose the Bill a second time, as they want the deadline for triggering Article 50 to be met. True, peers cannot really be whipped, but I feel it is more of a statement of feeling on the benches than an order. The Bill will go back to the Commons, and perhaps the amendment to give Parliament a vote on the final outcome will be accepted; but this one will not, and it will return and be voted through and become law, and the Brexit process will start.
The reason is very simple: the House of Lords cannot be seen to be defying democracy. If peers continue to be obstructive then chances are the government will just call an election, fight it on the issue of Lords reform, and then castrate the Upper House to make it totally ineffective. I don’t want that, and neither do they, and neither do you.