Contrary to what voters in the June 2016 referendum might have been led to believe, withdrawing from the EU is fiendishly complex, likened to “trying to take an egg out of an omelette.” (BBC)
Stop press: The Government have taken views on each of the 15 Lords amendments for debate next week. See this handy guide to their responses, and watch live here.
Following the 2016 vote, Parliament gave the Government authority to start formal negotiations on exit with the EU by triggering ‘Article 50.[1]
A key part of legally enabling withdrawal – a draft law known as the ‘Brexit Bill’[2] - has been working its way through Parliament since July 2017. Some 11 months on, it has now gone through both houses, the Commons and Lords, both vital steps towards becoming law - an Act of Parliament.
So what has happened so far? Quite a lot, in Parliamentary terms...
MPs in the Commons made a major change to the Bill requiring Parliament to have a “meaningful vote” on the final deal on exit reached reached by the Government with the EU. While debate continues about what ‘meaningful’ means, it was a big moment.
The Bill then went on to the Lords, the upper house of the UK’s Parliament, where draft laws are scrutinised by peers and revisions suggested before going back to the MPs in the Commons.
The Lords made 15 major changes to the Brexit Bill against Government wishes. These 15 changes cover a wide range of important issues –from the extent of the powers the law would give the Government, through fundamental rights, environmental protections, child refugees and the Irish border, to the kind of potential post-EU minutiae – customs unions and European Economic Area – that the British people are now a lot more familiar with than we were back in June 2016.[3]
So what happened next? Not a lot, in Parliament at least, until now...
Usually, a bill only becomes law when both the Commons and Lords agree on its content. For this to happen, the bill – as revised by the Lords, with all 15 changes – will be presented to MPs for consideration. Then they will likely have an opportunity to vote on whether to retain or reject each change. The revised text then goes back to peers and a process called ‘ping pong’ goes on until both Houses agree.
Reportedly Tuesday 12 June is the day, with unusually all amendments being voted on by MPs in one day: “a marathon session of Brexit business”.
Generally a government has a majority of MPs in the Commons, so can often overturn Lords amendments. But the present Government has a minority in the Commons, and as you’ll have seen in the news, there are range of views within both major parties. So the outcomes is far from certain. Some believe the Lords votes will embolden MPs to vote to retain some or all of the changes. Others think a compromise will be reached, at least on some issues, for example on the customs union.
Even so, some or all votes might get overturned by MPs. These would then go back to the Lords – who might chose send them back again. In that event, the Commons and the Lords would probably eventually agree.
But it just possible that they might not.
While the House of Lords is unelected, despite various attempts over more than a century to secure the support needed for reform - most recently back in 2012 - it remains a key part of our system of Parliamentary democracy. Partly because of this, the Lords tends to use its powers carefully, normally sticking to a polite ‘please think again, MPs’ before backing down, often after gaining important government concessions.
But one of the Lords’ important powers is to refuse to agree on a Bill, and so delaying it by around a year. This has been used sparingly – in fact only been used 7 times ever.[4] Using this power on the Brexit Bill would be a ‘nuclear option’, with rumblings that that long-delayed reform of the Lords might rise up the agenda if peers intervened excessively on the Bill.
Adding a bit more intrigue – in Parliamentary terms at least – is the fact that the Government set an unusually long session for this Parliament. While these normally last about a year, this session runs for two years from June 2017, reportedly to give time to address the complexity of Brexit.[5]
This means that if the Lords were to activate this rare power the Government would not be able to pass the Brexit Bill before the initial 29 March 2019 deadline for Article 50.
So, could the Lords stake its future on the Brexit Bill?
It is possible – most experts might well go with unlikely[6] – if not probable. But it was interesting that prominent Labour peer and former Government advisor Lord Adonis - who Bristol for Europe have invited to speak in Bristol on 4 July – mentioned these powers in his final remarks on the Brexit Bill in the Lords.[7]
With the sheer complexity of Brexit and the UK’s political maelstrom of the last 2 years, perhaps anything is possible?
[1] EU (Notification of Withdrawal) Act (2017)
[3] See this useful Institute for Government guide to all the amendments
[4] https://www.parliament.uk/about/how/laws/parliamentacts there are important exceptions to this power
[5] https://www.gov.uk/government/news/government-to-confirm-two-year-parliament-to-deliver-brexit-and-beyond
[6] https://consoc.org.uk/wp-content/uploads/2017/12/HoL-Brexit-A4-web.pdf, Dec 2017
[7] https://hansard.parliament.uk/lords/2018-05-16/debates/98F7DF3F-ACE5-42E4-9FF6-F2BB1027EFA5/EuropeanUnion(Withdrawal)Bill: Lord Adonis: “if the House of Commons expresses itself strongly, we take serious note, irrespective of the Salisbury convention; but if the Commons expresses itself with small and declining majorities, which might vanish if pressed to consider further, we take serious note of that too. Furthermore, on fundamental constitutional issues, we have a responsibility to the country to defend essential rights and interests, which is precisely why the Parliament Acts of 1911 and 1949 give us, as an unelected House, a delaying power over Bills such as this one. If the Government do not give the House of Commons an adequate and timely opportunity to consider our amendments, that fact would be bound to have a significant bearing on our future assessment of the public interest.”