'What will the Lords do with the Article 50 bill?' Professor Meg Russell, Constitution Unit
The bill authorising the Prime Minister to trigger Article 50, enabling the UK to leave the EU, has cleared the Commons. It begins its consideration in the Lords today. In this post Lords expert Meg Russell discusses how the second chamber is likely to treat the bill. She suggests that this illustrates important dynamics between Lords and Commons, which are often disappointingly misunderstood both in the media and inside government.
The European Union (Notification of Withdrawal) Bill is a simple two-clause measure to authorise the government to trigger Article 50 of the Treaty on European Union and thereby begin negotiations on the UK’s exit from the EU. This follows the ‘Leave’ vote in last June’s referendum, followed by the Supreme Court ruling that parliament’s authorisation was required. A previous blog considered the bill’s likely reception in the Commons, where it completed its initial stages on 8 February. Today the bill begins its consideration in the Lords, where it is due a two-day second reading debate, followed by two-day committee stage next week, and a day spent on remaining stages the week after that.
There has been much discussion of how the House of Lords will treat the bill – including wild speculation about possible retribution if peers try to ‘block’ the bill. Much of this fundamentally misunderstands the relationship between the two chambers of parliament, and the constraints within which the Lords always operates. The bill in fact nicely illustrates some of the subtleties of these relationships, and – while unusual in many ways – can serve as a case study of how the dynamics at Westminster work. By setting out how the Lords is likely to respond to the bill, this post seeks to communicate those wider dynamics.
As a starting point, two key features of the Lords are clearly pertinent, and feature prominently in stories about how it might respond to the Article 50 bill. First, the government has no majority in the chamber. As of today the Lords has 805 members, of whom only 252 are Conservatives. Labour has 202 seats, the Liberal Democrats 102, and the independent Crossbenchers – who do not have a whip or vote as a block – 178 (the remainder comprising bishops, smaller parties and other non-aligned members). This obviously, on the face of it, makes things look difficult for the government. Furthermore, the Lords is known to have an innate pro-‘Remain’ majority. The other obvious feature is that the Lords is unelected. This means (as further explored below) that it generally defers to the will of the elected House of Commons. Of course, the Commons also includes an innate pro-‘Remain’ majority. This presented MPs with various representational dilemmas (explored in the previous post) when debating the Article 50 bill. But the great majority concluded that the will of the public as expressed in the referendum must be respected – and hence that the bill should be approved. It passed its second reading by 498 votes to 114, and its third reading by 494 votes to 122. This is the starting point for debates in the Lords.
As in the Commons, the second reading is the opportunity for peers to debate the principles of the bill. It cannot be amended at this stage. A record 190 members have put their names down to speak in the debate, which takes place today and tomorrow. A wide range of views are likely to be expressed – about the pros and cons of Brexit, the government’s negotiating position, and the details of how the negotiations and wider process should proceed. Many peers are also likely to discuss the importance of respecting, on the one hand, the views of the public in the referendum, and on the other the views of elected MPs (some of course may also comment on the shortcomings of the referendum process). At the end of the second reading – as in the Commons – a vote is possible on whether the bill as a whole should proceed. But, unlike in the Commons, Lords votes at this stage are very rare, and government defeats are even rarer. Over the whole period 1999-2012 there were only three such defeats (and only 12 votes altogether). None of these three explicitly rejected the bill outright. For the Lords to reject this bill would hence be unprecedented, and – given the high levels of support for it in the Commons – is so unlikely that it can be dismissed altogether as a possibility.
Committee stage, and amendments
The committee stage of the bill is due to take place in the Lords on Monday 27 February and Wednesday 1 March. This is the first stage in which members can propose and vote on amendments. While it is widely anticipated that there will be no vote at second reading, there has been significant speculation that the Lords will amend the bill – and this is, indeed, far more possible. As yet, relatively few amendments have been proposed, but these will continue to be tabled in the days ahead. Members may, in particular, listen out for what the government – and especially ministers speaking in the debate – say in response to points raised at second reading before deciding how to proceed. Although this is a two clause bill, MPs tabled over 140 pages of amendments – the great majority of them seeking to add new material. In particular (as summarised in the previous post) they sought to lay down conditions for the negotiations – including assurances that the government must give before beginning the negotiations, or subsequent requirements that must be met after they are completed. A key point made by many members – and particularly the Labour opposition – was that the referendum simply agreed a principle (i.e. Brexit), but not what form that should take. Many MPs hence saw it as legitimate to lay down conditions, and particularly to require ministers to report regularly, and to consult parliament and/or the wider electorate to ensure that there is broad support for the final deal.
A key point, which is not explicit from most of the media reporting, is how the Lords will take its cue very substantially from the Commons in deciding which issues to press. Given the large number of Commons amendments tabled, and the brevity of the bill, many of the Lords amendments naturally repeat those proposed in the Commons. But the ‘ones to watch’ are the issues where Commons discontent was clearest. All amendments voted upon in the Commons were defeated, and the only Conservative rebellions were very small. Nonetheless, it was clear that there was latent discontent on the Conservative benches on some issues. Even before the bill was introduced the government had made some concessions to avoid backbench rebellion. In the expectation of a Labour amendment requiring a white paper to be published, which numerous Conservative backbenchers clearly supported, Theresa May finally agreed to do so. During Commons debates on the bill the government conceded that there will be a parliamentary vote on the final deal will take place before a similar vote in the European Parliament – which reduced the number of backbench rebels on a key Labour amendment to just seven. However, MPs appeared to have been wrongfooted by the announcement, and some subsequently expressed concern that this would still only be a ‘take it or leave it’ vote. Another key issue on which there was a concession, but which some considered insufficiently firm, is the rights of EU nationals currently resident in the UK. An amendment on this topic proposed by former Labour leader Harriet Harman, who now chairs the parliamentary Joint Committee on Human Rights, attracted just three Conservative rebels. But this number had been reduced by government assurances on the topic, including a letter circulated by Home Secretary Amber Rudd. Subsequently, concerns have been expressed that these assurances still leave EU nationals in limbo.
Two big issues to watch are therefore the rights of EU nationals and the role of parliament in agreeing the final deal. Lords committee stage amendments have been proposed on both of these by the Labour front bench. It is important to note that change is not wholly dependent on these amendments being approved. Peers will listen carefully to the government’s response in committee, and be looking for clearer and firmer assurances than before. If these are forthcoming, that may satisfy both them and rebel MPs. If the government’s response is weak, peers may nonetheless initially drop the amendments, allowing an additional period of reflection and negotiation before the report stage the following week. Votes in committee in the Lords are not unusual (though this is sometimes stated), but often peers hold fire until the subsequent stages.
Report stage and third reading
The report stage and third reading are due to take place on Tuesday 7 March. Amendments are possible at both of these stages (but are more limited, and less likely, at third reading). When a vote is called, approval of amendments in the Lords depends on the behaviour of the key groups – primarily Labour and Crossbenchers. The pro-EU Liberal Democrats, in particular, cannot in practice win votes without Labour support, which is why continued assurances from Labour Leader Baroness (Angela) Smith that her peers will not block Brexit are so important. For example, if Liberal Democrat peers seek to amend the bill to include the requirement of a second referendum there is no certainty that Labour will support that. Labour’s ability to press the issues of rights the EU nationals and a final parliamentary vote on the deal will largely depend on attitudes of Crossbenchers and Conservative doubters (Liberal Democrat support being already likely). These members will be very swayed by two things: first, the firmness of assurances from ministers, and second, whether there is any behind-the-scenes encouragement from backbench Conservative MPs. If the government gives firm enough assurances, Labour may either drop its amendments or fail to gain sufficient support for them from others. At the end of third reading there is in principle a possibility of a final vote on the bill as a whole. But again, unlike in the Commons, such votes are exceptionally rare. Indeed this is even more so than at second reading – only one such vote has occurred in the Lords since 1970.
The ‘ping-pong’ stages
To reach the statute book a bill must be approved in identical terms by both chambers of parliament (except in the unusual circumstances where it is passed under the Parliament Acts without the Lords’ consent – which requires a lengthy delay). In practice differences between the chambers are almost always resolved through negotiation. If the Lords has agreed any amendments these must therefore be approved by the House of Commons, and the bill will ‘ping-pong’ back and forth between the two chambers until both agree it. Although peers may appear to hold the whip hand, since the government needs their approval and lacks a majority in the Lords, in practice it is MPs’ views that crucially decide controversial matters such as these. By amending a bill, particularly in a case like this where the Commons has already considered similar amendments, the Lords in effect sends the question back to MPs asking ‘are you sure?’. Given that there have already been rebellions on some of these issues, albeit very small, the government (which has a very small Commons majority) will be reluctant to put these issues to MPs again. Hence when the government responds to amendments in the Lords it is speaking as much to its MPs as it is to peers. In considering whether to press their amendments, peers likewise consider very carefully how MPs are likely to respond. If the bill returns to the Commons with amendments, for example on EU nationals’ rights or parliament’s role in the final deal, this is ministers’ last opportunity to convince MPs that any fears they have about the government’s intent are unwarranted.
Hence the Lords may amend the Article 50 bill, but if it does, the likely focus is on issues that MPs themselves have concerns about. Peers will offer MPs (and particularly Conservative backbenchers) the opportunity to put further pressure on ministers over the precise terms of the Brexit deal. The Lords will not block the bill, and indeed even if there are amendments these are likely to be resolved very quickly, leaving plenty of time for Theresa May to reach her end of March deadline. It is quite possible that the bill will complete its parliamentary passage without any amendments at all. But crucially, this should not be seen as a sign that parliament has lacked influence, or has ‘caved in’ to government. The government has already moved on many important issues regarding the process of Brexit under parliamentary pressure. The likeliest outcome of the Lords stages is that it will move further on matters of important detail.
About the author
Professor Meg Russell is Director of the Constitution Unit. She is the author of The Contemporary House of Lords: Westminster Bicameralism Revived (Oxford University Press, 2013), and her next book, Legislation at Westminster (with Daniel Gover), is due for publication by OUP in summer 2017.
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