What to Expect When The Brexit Bill Hits The House of Lords – Ten Predictions
Meg Russell, 25 Jan 18

Claims that peers could ‘block Brexit’ have been exaggerated. Dan Kitwood/PA Wire

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.

Time for the Lords to shine a spotlight on the EU Withdrawal Bill. from www.shutterstock.com

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.

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