‘I will not put any party before my country.’ Peers get ready to scrutinise Brexit
The EU Withdrawal Bill is expected to reach the House of Lords early in the new year, after its four-month journey through the Commons. And, as Gary Connor reports, peers on all sides are determined to have their say
“It’s like being in purgatory” one peer told me recently, when I asked how it felt waiting for the EU Withdrawal Bill to arrive in the House of Lords. The government’s key piece of Brexit legislation is a giant exercise in copying and pasting EU law onto the domestic statute book. But critics have labelled it a ministerial power grab on a massive scale, and accuse the government of using the bill to avoid parliamentary scrutiny.
Despite a high-tempered journey through the House of Commons – during which 15 critical Conservative MPs were branded “Brexit Mutineers” on a controversial Telegraph front page – the Bill has survived relatively unscathed. But it will soon clear the Commons, and then it’s off to the Lords where the real hard work on the bill can begin.
“Unelected members of the House of Lords have vowed to fight us every step of the way,” Theresa May warned back in April, after stepping out of Number 10 to announce to the country that she was calling a snap general election to secure her mandate for Brexit.
That election, which was supposed to strengthen May’s hand, has left her running a minority government that relies on the support of the DUP to get its legislation through the Commons. But this is nothing new in the Lords. No single party commands a majority here, and governments of all colours have had to rely on the strength of their argument – rather than strength in numbers – to get their legislation passed.
But the loss of the government’s majority in the Commons has given added importance to what happens in the upper chamber. Since the election the Labour leader, Baroness Smith of Basildon, says the government has been much more open to negotiation on legislation across the board, “not because they fear defeat in the House of Lords, but because they know that if we win an amendment, it will probably carry in the House of Commons”.
The treatment given to previous Brexit bills in the Lords provides an early indication of just how difficult the government’s task will be. The Sanctions and Anti-Money Laundering Bill – described as the first “proper” piece of Brexit legislation to be put in front of peers since the general election – has been the focus of sustained opposition. The Bill allows the UK to maintain existing sanctions and impose new ones, post-Brexit. But Lib Dem leader Lord Newby says it contains “draconian” powers, which he argues could be exercised with little parliamentary scrutiny. “It’s as if someone in government is saying: let’s see how much of a ministerial power grab we can get away with,” Newby says. “The government’s been completely ripped to shreds on it.”
Other signposts can be found in the European Union (Notification of Withdrawal) Act, which gave Theresa May the power to invoke Article 50 and start the clock ticking on our exit from the EU.
The bill was signed into law unamended. However on two issues pressed to a division in the Lords, the government was defeated with cross-party support; citizens’ rights and parliamentary approval for a Brexit deal.
And those Conservatives who defied their party on Article 50 warn that, if colleagues don’t like what they’re hearing this time round, the rebels’ ranks will swell.
Baroness Altmann was one of 13 Tories to vote for the amendment on parliamentary approval. “I know there are a lot more who will stand up to the government if they believe the legislation is not suitable for the country and is not in the national interest,” she tells me.
It’s a warning echoed by fellow Conservative rebel Baroness Wheatcroft, who recalls a recent conversation with a colleague from her party who had remained loyal to the government on the Article 50 legislation.
“She was relatively new, she thought she should do what the whips told her,” Wheatcroft says. “Now she realises that the reason she is here is to go with what she believes.
“I think there are going to be more of those that won’t just be whipped into line.”
The bill is expected to clear its Commons stages by mid-January, and could be formally introduced in the Lords as soon as the following day. A two-day Second Reading is expected to take place before the February recess, with at least eight days of line-by-line scrutiny in committee likely to take peers up to the Easter recess, followed by Report Stage and Third Reading when they return.
Votes on issues raised during Committee Stage are rare, but not unheard of, leaving the government to crunch the numbers over Easter to work out where they’ll have to make concessions in order to avoid defeats further down the line.
The exact shape of the Bill that reaches the Lords is still to be determined by MPs. But despite changes in the Commons many peers are likely to retain concerns – particularly over the volume and scope of ‘Henry VIII’ powers and the exact form that the promised ‘meaningful vote’ in parliament will take.
The Lib Dems will also try to amend the bill to ensure the Brexit deal cannot be implemented without a second referendum, but with Labour unconvinced on the issue, their hopes are very slim.
Viscount Ridley, the Conservative Brexiteer and scientist, says there are matters of detail that the Lords are entirely right to scrutinise, but warns peers against using such vital legislation to make “big P political points”.
The government is “not expecting to get this bill through unscathed,” he says, admitting that ministers will “have to live” with some changes.
But he says that the government is in “listening mode”. “The conversations I’ve had with ministers implies that they are quite openly trying to work out how to write all this body of law into British law in the best possible way,” he tells me.
There’s been some evidence that the government is amenable to changes. It announced recently that it would accept amendments to set up a “sifting committee” to ensure statutory instruments cannot just be waved through parliament.
Lord Lisvane, a crossbench peer and former Clerk of the Commons, calls the news a “positive change” but says the committee alone is not enough to overcome the concern in the Lords over the use of Henry VIII powers.
Lisvane is a member of the influential Delegated Powers Committee, which reported on the bill in September, warning that it gave powers to the executive that were “beyond what is necessary” to ensure UK law works properly after Brexit. “I don’t think anybody doubts that ministers are going to need some heavy-duty powers,” he says – adding that nobody is suggesting everything that needs to be done can be done through primary legislation. But he expects this issue of parliamentary control over those powers to be at the centre of debate in the Lords over the spring.
Labour leader Baroness Smith of Basildon admits that passions will run high, when the EU Withdrawal Bill finally gets its Second Reading in the Lords, but she says peers will treat the bill “like every other bill we get” and fulfil their role as “a revising and scrutinising chamber”.
She recognises that some Remain-supporting voters will be urging sympathetic peers to do what they can to block Brexit. “But that’s in the hands of the government and the public,” she says. “It’s not in the hands of the House of Lords.”
But Smith’s side have their own splits over Brexit. During the Article 50 Bill the former Cabinet minister Lord Hain tabled an amendment, on retaining single market membership, which attracted the support of 33 Labour colleagues – while 53 Labour peers, including the frontbench, voted with the government to ensure the amendment was defeated. The rest of his party abstained.
Hain believes that many sat on their hands last time round because they didn’t want to vote against the frontbench – but he believes that minds will focus as the “home straight” of Brexit approaches. He says he is hopeful that Labour’s position will evolve to take into account what he says is the “majority in the Lords who want to stay in the single market or the customs union”. “Either the frontbench gives expression to that or it’ll find expression in another way,” he warns.
Of course, any changes made to the Bill have to be agreed by the Commons and pressure will mount on peers to back down and avoid a lengthy period of ‘ping-pong’. Smith says a judgement will have to be made at the time, on whether the Lords can push the Commons any further on its amendments, if they see a change of opinion amongst MPs. “There is a limit, you don’t go backwards and forwards forever,” she says, but adds: “There are times when it’s worth giving it a second shot.”
Peers concede that the House of Commons has primacy and the government of the day should eventually get its way.
But Baroness Wheatcroft pointedly adds that, in theory, peers can delay the bill for up to a year. “If we think it’s in the interests of the country to do that, I think we should do that.”
Both Altmann and Wheatcroft say they faced sanction for their rebellions during the passage of the Article 50 bill. When Wheatcroft’s term on the Economic Affairs Committee ended, she was expecting to join another one. It was made clear to her that wouldn’t be happening. Altmann, who was a pensions minister until July 2016, was told that she would not be offered the chance to sit on a committee because of the way she had voted – a reaction that left her feeling “rather cross”.
Punishments like these are “unprecedented in the Lords” Wheatcroft claims – but she lays the blame at what she says was a “bullying regime in Number 10” before the general election, rather than her party’s chief whip.
She says it has even been suggested to her by one or two colleagues that she might be more “comfortable” on the Crossbenches – a move she says she has no intention of making. “If it’s big enough for Ken Clarke, it should be big enough for me,” she says of her party.
Altmann agrees, insisting it is vitally important to get the withdrawal bill right, regardless of political interest. “I realise that one doesn’t want to rebel but, if you have to, you have to,” she says, adding that she is “not frightened” of the consequences.
“If I’m sacked for this, I’m fine. I will not put any party before my country.”