After a bumpy ride in the House of Commons, the European Union (Withdrawal) Bill has arrived in the Lords, where the numbers are stacked against the government. The Conservatives currently hold just 248 out of a total of 794 Lords seats, with Labour on 197, the Liberal Democrats 100 and independent Crossbenchers 183.
Suggestions that the Lords will “block Brexit” are misconceived – but the bill is likely to be heavily amended. Here are ten predictions about what might happen, some of which explode common myths about the UK’s upper house of parliament.
1. Expect significant amendments
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”. In addition, the bill includes extensive “delegated powers” allowing ministers to amend retained EU law with limited parliamentary oversight. Even leaving aside the disputed context of Brexit, this combination guarantees that scrutiny in the Lords will be intense. It will almost certainly result in changes.
2. Most change will be through less visible concessions
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. So it is far better, if defeat looks inevitable, for ministers to offer concessionary amendments.
3. Defeats might start at committee stage
The most common 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 votes are often described by the media as “unusual” but this is not the case. In the period between 1999 and 2012 there were 1,518 votes in the Lords on legislation, 330 of which were at this stage. Of these 73 resulted in defeat.
4. Constitutional criticisms will be central
Expect significant criticism from the Lords Constitution Committee, which is due to publish its verdict imminently. Its interim report published in September 2017 said the “multiple ambiguities in the bill are deeply problematic”, and described the extent of delegated powers as “breathtaking”, “unprecedented and extraordinary”. Relatively little has changed on these matters in the Commons, so expect a critical report.
5. Committees will also drive change on delegated powers
An interim report by the Lords’ highly-regarded Delegated Powers and Regulatory Reform Committee, also published in September, complained that the bill includes “wider Henry VIII powers than we have ever seen”. This is a term used to describe ministerial powers to amend Acts of Parliament with limited parliamentary oversight. The report considered some of these to be “wholly unacceptable”. Although scrutiny of such delegated powers was improved as a result of amendments in the Commons, expert observers consider these changes inadequate and the committee will probably agree.
6. The Lords won’t reverse Brexit
Suggestions that the Lords could use this bill to “block Brexit” are wildly exaggerated. 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 it welcomes suggestions on how to deal with these unprecedented, knotty issues. On any bill, the chamber gets far less involved in big political questions. On this bill, which is wholly procedural, there is admittedly some blurring between the political and the technical. So the Lords may push further on the promised “meaningful” parliamentary vote on the final Brexit deal at the end of negotiations with the European Union.
Some peers will also argue that the issue of a second referendum is a legitimate process issue. But in general, defeats on really big issues are less likely than many assume.
7. Success of “anti-Brexit” amendments is unlikely
In terms of prospects for “anti-Brexit” amendments, it’s important to think about numbers in the Lords. The chamber contains almost 800 members. To build a winning coalition against the government requires not only the 100 Lib Dems, who are the clearest anti-Brexit block, but sizeable numbers of Crossbenchers, and crucially, the support of Labour. In debates on the bill in the Commons, the positions of Labour’s frontbench were carefully chosen. For example, it abstained on calls for a second referendum. Hence out-and-out attacks on Brexit by a minority of peers will not succeed unless Labour shifts its line in favour of such positions.
8. Peers will be constrained by convention
Peers will also be constrained by convention, and deference to democratic outcomes. The Lords 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 it normally pass “wrecking” amendments. This makes it essentially inconceivable the Lords would “kill” the EU Withdrawal Bill. Peers will take account not only of the Commons’ view, but the outcome of the 2016 referendum.
9. The Lords will follow MPs’ lead
Peers are likely to press hardest on issues where there was greatest concern in the Commons. Any defeats in the Lords must be sent back to the Commons, so those which “stick” are mostly on issues where MPs – particularly government backbenchers – have concerns. In the Commons, numerous issues were raised but not resolved, and it is clear that some MPs explicitly want peers to extend discussion on these issues, and to press ministers further. Such issues include the status of the EU Charter of Fundamental Rights and the powers of the Scottish, Welsh and Northern Irish devolved bodies.
10. Everything could still change
The Lords stages offer both chambers further time to reflect, and Brexit remains fundamentally unpredictable. The issues on which the government is in greatest difficulty are clearly those where the chambers are united. The government’s Commons majority is fragile and it has benefited so far from relative caution by its own backbench rebels and the Labour opposition.
Should the mood in the Commons – and indeed the country – change, peers will be very alert to that. In these unpredictable times, the EU Withdrawal Bill could therefore still get into significant 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 Commons.
A longer version of this article also appeared on the UCL Constitution Unit blog.