Can the Lords be ignored on Brexit?

Peers in the House of Lords, London, as the Government suffered its first defeat in the Lords over t

Peers in the House of Lords, London, as the Government suffered its first defeat in the Lords over the European Union (Withdrawal) Bill after peers voted in favour of a customs union amendment.Photo: PA - Credit: PA Wire/PA Images

The government has suffered its first defeat in the Lords on Brexit.

It is hardly a surprise of course, the Upper House is packed with Remainers.

Peers will catch some flak for not backing the bill though. The thinking in the Brexit department is that the Lords is aiming to stifle the process of leaving the European Union, to dilute the referendum vote.

Brexiteers will no doubt drag out that tired, old phrase 'the will of the people' as they attack peers for going against the government plans.

The main defeat this week was on the customs union. Theresa May has ruled out staying in a customs union after we leave the EU saying it would hamper the UK's ability to strike new trade deals with other countries.

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But the Lords voted 348 to 225 in favour of pressing ministers to negotiate a way for the UK to remain in the customs union.

What a mess. But we must understand the parliamentary system and appreciate the reasoning behind the need for the EU (Withdrawal) Bill to even go before the Lords.

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The Upper House provides a function of checks and balances on government policy. It can amend legislation and often does. Then the bill gets sent back to the Commons for further debate and potentially votes.

Many controversial bills have gone back and forth over long periods, a process known as 'ping-ponging'. But with negotiations at a critical phase between London and Brussels the fact of the matter is the government doesn't have time to play table tennis with the other place.

The time sensitivity is what will frustrate Downing Street the most.

The likelihood is the government will suffer further defeats as the bill receives yet-more scrutiny. And this could prove dangerous for the Upper House. It is certainly not the first time the two Houses have squared up.

Back in 1909 Liberal chancellor David Lloyd George introduced the People's Budget. It had strong support among the public due to plans to heavily tax wealthy landowners. This did not go down well in the Lords – then crammed with Conservatives – and the Upper House threw it out.

Back then if the government could not get legislation passed the Lords it could not become law.

This infuriated prime minister Herbert Asquith who set about a plan to curtail the power of the Upper House. First he flooded the Lords with Liberal peers and then passed the 1911 Parliament Act which effectively abolished the ability of the Upper House to strike out legislation.

They could still delay though. And that ability remains to this day.

In the end the Commons can over-rule the Lords. And that is clearly the plan. During this week's debate Brexit minister Lord Callanan said the government had no intention to 'further reflect' on the customs union.

So what is the point of the Lords? Hopeful Remainers think the rebellion of 24 Tory Lords could empower wavering MPs to do the same. They are also optimistic the fears of the Lords will have ministers questioning whether they have got the Brexit bill right. They shouldn't hold their breath.

This is a government paralysed by Brexit. There can be no flexibility. Mrs May left herself no wriggle room by proclaiming her wholehearted support for Brexit just a few weeks after campaigning to Remain.

The belief in government is Brexit must be delivered in a very specific way – even if the impact assessments, experts and Lords are ringing alarm bells.

Peers are not saying 'stop Brexit', although undoubtedly many of them would like to be able to. They are saying 'as a collective we are worried that the best thing for the nation is not to rush out of the customs union'.

In time the government may well come to the conclusion that is not possible – but further scrutiny is surely what is needed. No one, Brexiteer or Remainer, wants the country to be worse off once we have left the EU. That includes, surely, both Houses.

In the end the Lords' power is limited. But government should ignore the peers at its peril.

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