This week the government’s Article 50 bill failed to pass through the House of Lords by a majority vote of 358 to 256. The Lords rejected the bill in favour of an amendment that would make the government guarantee the rights of EU citizens currently living in the UK. This amendment will now be reconsidered in the Commons, forcing a debate that may not have been necessary at present.
The Lords have been criticised by a former Tory chancellor for doing a disservice to the national interest by imposing the discussion of terms before entering negotiations with the EU. Prime Minster Theresa May has, up until now, kept her cards very much hidden with regard to her plans for negotiations. The white paper administered for the European Union (Notification of Withdrawal) Bill was one of the shortest ever proposed in the house and was intended only for the consideration of the triggering of Article 50. Nothing beyond.
Ian Duncan Smith has accused the Lords of posturing on an issue that is of no immediate concern and will not stand in the way of the Prime Minister’s plan to invoke Article 50 on March 15. There is, however, a significance to this vote when we consider the Brexit process moving forward.
The Commons passed this bill without amendment and was easily defeated in the Lords. Next Tuesday the Lords will vote on a further amendment that will ensure Parliament has had a “meaningful debate” regarding Brexit with quarterly updates on the state of negotiations. Leader of the Liberal Democrats, Tim Farron, believes the government will be defeated again with Labour peers backing the amendment.
Fundamentally, the government is in a sticky situation. With a Labour/Lib Dem majority in the Lords the Tories will find it extremely difficult to push legislation through both houses at any pace. For lack of a better phrase, ping-pong between the Houses could disrupt the progress made by MPs in the chamber or Theresa May herself in Brussels.
All this happening in the same week BBC2 launched their new documentary Meet the Lords has put the second chamber at the forefront of the Brexit discussion. Yet instead of prompting some distant patriotism, alarm bells have started to ring. Questions need to be raised over the power of the Lords. As an unelected body, does the Lords really have a strong enough mandate to deny the triggering of Article 50 without x, y, and z? If the Lords, at least in its current form, shouldn’t supervene on the Commons in such a way, what should be changed to make its efforts more credible?
The one immediately evident problem with the Lords is that it accommodates too many peers; 804 in total. The Article 50 Bill is one of our biggest political steps in the last 40 years and still only 614 peers showed up to vote. In 2016 the House also debated five amendments on the Immigration Bill with one of the divisions drawing as little as 364 peers, less than 50%.
For a topic with as much public interest as immigration, there needs to be a higher level of commitment from the house to justify any infringement. One way this could be achieved is by offering finite positions in the House so the holders do not outgrow their political challenges. Failing that, the number of peers needs to be severely reduced to make the Lords financially cost effective.
Even so, perfect attendance doesn’t justify an unelected body baring influence – good or bad – on the way a democratically empowered government makes laws. In the BBC2 documentary, Green Party peer Baroness Jenny Jones declared she wanted the Lords to be made up of purely elected peers. This type of reform isn’t unpopular, but seems unhelpful. Having a second elected chamber could undermine the supremacy of the Commons seeing as both would have a democratically given mandate. It could be argued the Lords would have as much right to drive the policies voters banked on them delivering, much like MPs currently do for their constituents in the Commons. Regarding Brexit, this would lead to a complete stalemate between the Houses. And, remember, elections cost money.
But to dissolve the house would seem rash. The Lords is one of the few bodies that can actually scrutinise in detail (and with some expertise) the rhetoric of parliamentary proposals that are tactically pushed through the Commons by point scoring politicians. The Daily Telegraph’s Peter Oborne has gone further to say the Lords is at an advantage having not been elected because only an unelected body would be bold enough to correct the work of the government, even if this meant postponing the will of the people. But postponing the will of the people in the form of Brexit may be a step too far.
It is clear that the Lords needs further reform and should first be reduced in size. I also really do think set terms on seats would be a step towards a higher level of engagement from the upper house. We will do well to remember that power needs to be separated in some respect so the Commons doesn’t become too autocratic and the Lords, to a certain degree, helps with this.
The Lords, for now, will remain. It is crucial, however, that it does not continue to undermine the efforts Theresa May has finally made to get up and get on with Brexit. There is a long process ahead and the upper house risks over egging their policy amending to the point of repute if they are not careful. Let’s hope they heed their warning.