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11 Sep 2020

Constitution

Widespread shock greeted this week’s news that Boris Johnson hopes to set aside elements of the Withdrawal Agreement related to Northern Ireland – particularly when Northern Ireland Secretary Brandon Lewis admitted to the House of Commons that the UK Internal Market Bill drafted to achieve this ‘does break international law’.

Former Conservative Prime Ministers Theresa May and John Major, and senior government backbenchers, loudly protested.

Former Conservative Solicitor General Lord Garnier expressed surprise that the government’s law officers – those ministers expressly charged with protecting the rule of law – hadn’t resigned.

After an emergency meeting, the European Commission vice-president demanded that the UK withdraw the plans.

The Irish Prime Minister described them as ‘extremely divisive – and dangerous’, while the US House Speaker Nancy Pelosi warned that breaching international law would mean ‘absolutely no chance of a US-UK trade agreement’.

There are clear questions over whether such a controversial bill – whose Commons second reading is on Monday – can secure parliamentary approval. Specifically will it, as some suggest, be blocked by the House of Lords?

A prior question is whether these provisions will make it through the House of Commons. Despite Johnson’s majority, Conservative dissent is unusually intense.

This is unsurprising since, as many have recently quoted, that most iconic of Conservative prime ministers Margaret Thatcher consistently emphasised respect for the rule of law as a core Conservative value.

There is actually a prior question even to this, regarding whether the Commons will even be asked to approve the offending clauses. In Parliament the ‘law of anticipated reactions’ generally applies: sensible governments facing a likely Commons defeat will retreat on legislation if they can.

When Charles Walker, vice-chair of the backbench 1922 Committee, was asked whether Conservative MPs would vote against the bill (21:18), he responded ‘I doubt we are to get to the stage where we are asked’. This implied that the Prime Minister would hear the drumbeats, and back down.

One option would be to accept the amendment proposed by Conservative chair of the Justice Committee Bob Neill, and supported by other senior Tories, which requires a further parliamentary vote before the offending clauses would take effect. That might keep the peace temporarily, but how would the Lords respond?

Again it’s noteworthy that the law of anticipated reactions operates between the two parliamentary chambers. They are not wholly separate, but form an interconnected system. This means that peers are very alert to backbench dissent in the Commons.

If government MPs are uneasy, the Lords is more likely to act. But even without that pressure, it seems highly likely that the Lords would vote down proposals which the government’s own law officers apparently called a ‘clear breach’ of the Withdrawal Agreement.

The Lords always takes a significant interest in constitutional matters, and has its own highly-regarded Constitution Committee which reports on relevant bills.

Particularly on the independent ‘crossbenches’ it contains many senior lawyers and retired civil servants, and the government has no majority. The Conservatives are the largest party, but easily outnumbered by Labour, Liberal Democrats and Crossbenchers, whose combined hostility would be enough to guarantee defeat.

But even senior Brexit-supporting Conservative peers – including Norman Lamont and former party leader Michael Howard – have spoken out on this. If provisions to breach international law remain in the bill, it is thus likely that some Conservatives would vote against them, and others simply abstain.

That certainly applies to the government’s original words, but also probably if the Commons adopts Bob Neill’s ‘not now, but maybe later’ amendment. Peers will most likely want provisions which explicitly entertain the possibility of breaking international law taken completely out of the bill.

The Lords doesn’t have an absolute veto on most legislation. So if this happened the bill would be sent back to the Commons for reconsideration, which would be distinctly awkward for Conservative MPs. If the Lords removes the offending clauses, MPs could be explicitly asked to put them back in.

This could happen several times if the Lords stood its ground, which it might well do. No major showdown of this kind between the chambers has occurred now for some years, but there were various such constitutional stand-offs under the Blair governments.

Despite loud complaints from some newspapers, the Lords was very cautious over Brexit – understandably deferring both to MPs’ decisions and the referendum result.

But that deference has its limits – one of which would almost certainly be proposals to endorse a breach of international law. Moreover, this move explicitly reneges on the Withdrawal Agreement which the Conservatives’ 2019 manifesto described as ‘a great new deal that is ready to go’.

One of the biggest showdowns of the Blair years was the Lords’ resistance to compulsory ID cards, which breached promises in the Labour manifesto – after five rounds of ‘ping-pong’ Labour MPs’ patience wore increasingly thin, and ministers backed down.

Returning to ‘anticipated reactions’, MPs presented with this bill must bear in mind that the Lords will almost certainly defeat provisions threatening to breach the Withdrawal Agreement.

If MPs hold their noses and vote for these, or conveniently abstain, they may be forced to confront them over and over again.

The only sure way to avoid that is to defeat them themselves. Looking to the unelected Lords to defend constitutional propriety is, after all, not necessarily a good look for MPs.

The EU has asked for these provisions to be withdrawn. The law officers’ published legal advice repeatedly emphasises the core principle of parliamentary sovereignty. Hence it is ultimately for Parliament to decide what to do.

The Internal Market Bill will not, and cannot, die a death in the Lords (though the chamber could, and perhaps even might, delay the bill for a year under the Parliament Acts – something that has not happened since 2004).

More likely the Lords could, one way and another, help the offending provisions to die a death in the Commons.

Given MPs’ own strong opposition, and the innumerable Conservative grandees and international voices that have spoken out, the real question may be whether these clauses die before they get there at all.

By Meg Russell, senior fellow at The UK in a Changing Europe.

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