Under normal circumstances, there might have been good reason to be aggrieved that an unelected House of Lords has forced the elected House of Commons to rethink a piece of legislation. This was a piece of legislation based on the vote of the people in a referendum to leave the European Union that the commons had passed on to the upper chamber of parliament. But as the collective national paroxysm that is Brexit continues to push and pull at British politics, we know that these are anything but normal circumstances.
On March 7, the House of Lords passed an amendment to the Brexit bill, calling for parliament to be given a “meaningful” vote on the final deal reached between the UK and the EU on the terms of its withdrawal from the bloc. An earlier amendment, calling for all EU nationals currently living in the UK to be given a guaranteed right to remain, was also passed on March 1.
The right-wing press – and the more extreme Brexiteers in government – have already portrayed peers as undemocratic, working to frustrate the will of the British people.
But this is a time for sober minds and sober reflections on the course of parliamentary democracy.
Real scrutiny
The first thing to reflect on is that on this piece of legislation in particular, the Lords were actually handed a far more significant role by the commons itself. The total absence of any meaningful opposition from Labour meant that the bill on triggering Article 50 received little real scrutiny before it was passed to the Lords. No matter one’s position on the legislation, or on Brexit as a whole, the role of the opposition is to challenge, to push, to scrutinise the legislation the government puts before it. The three-line whip imposed by the Labour leadership in favour of the Brexit bill meant that despite the rather tepid debate that took place there, this role was totally abandoned.
And this goes beyond the role of the party sat on the opposition benches at any given time: this is about the purpose of both houses of parliament as the British legislature. Its role is, as the name suggests, to legislate – to contribute to the drafting of legislation, along with the government, and to make sure that it is the right legislation that is being drafted. The importance of this role is amplified significantly when the legislation is contentious.
Therefore on the Brexit bill – the first piece of legislation on an issue so contentious it has divided a nation by 52% to 48% – if the opposition in the commons failed to do its job, where would the much-needed scrutiny stem from? It had to be the House of Lords, and this is indeed the reason it exists.
In this whole process, one of the fail-safes of a bicameral parliament has been on display. If the lower house has failed to produce legislation properly, this is exactly what the upper house should be doing: stepping in and providing scrutiny where scrutiny has been lacking.
The point of an upper chamber
All of this provides pause to reflect on this legislative arrangement as a whole, and the exact nature of the problem of having an unelected second chamber. The main problem is not that an unelected Lords is always and forever extensively involved in amending legislation. You can count on one hand the amount of times in the past two parliaments that the Lords has made significant interventions into legislation drafted in the commons – for example, on George Osborne’s cuts to tax credits in 2015 and the so-called Dubs Amendment on unaccompanied minor refugees in 2016.
Rather, the problem is the opposite: because they are unelected, the Lords know that they have little legitimacy to play a more meaningful role than the one they do now, and this often relegates them to the role of rubber-stamping legislation. True, they do provide valuable scrutiny, but often it is on the finer detail of legislation at committee stage rather than the merits of legislation as a whole.
In truth, a fully professionalised, fully elected upper chamber – something akin to the US senate – would be welcome, as would the involvement of its members in the policy making process. But this seems a long way off, and until Britain gets there, we should welcome the one or two pivotal moments when the Lords steps in to provide scrutiny on contentious and pressing issues.
The Brexit bill will now head back to the House of Commons, where the government has said it intends to defeat the Lords’ amendments. But it’s important to keep their additions to the bill in perspective: this is not an anti-democratic move made to subvert the will of the people. This is the lower and upper houses of the UK parliament, in spite of its myriad problems and its very British idiosyncrasies, working at its best: scrutinising, challenging, and making sure that the government and the nation as a whole have got it right on how we start the Brexit process.