Members of both parliamentary chambers are working together to shape Brexit. Peter Mandelson and Alison McGovern explain how
In the 2010 to 2015 parliament, the opposition in the House of Commons beat the government in a meaningful vote six times, including twice in foolishness when the whips where caught napping. In the same parliament, in the House of Lords however, the opposition beat the government on no less than one hundred occasions.
You can imagine, then, the view of Theresa May and her cabinet as the European Union withdrawal bill proceeds from the Commons to the Lords. Goodbye fierce whipping system, Democratic Unionist party-provided majority and supplicant newly-elected Tory members of parliament looking for promotion. Hello independent-minded peers, lack of automatic majority, and former Tory cabinet ministers with axes to grind.
The Lords may not have directly-elected legitimacy, but in a hung parliament, the government cannot appeal to the overwhelming support of the public for their manifesto as a reason for the Lords to back down. So, they do face serious challenges in the peers’ house, especially given the passage of the bill so far.
To recap: in the Commons, the sole amendment made to the EU withdrawal bill was a crucial one. The government may have succeeded in 39 out of 40 divisions, but they failed to get Dominic Grieve to back down on the point of principle that MPs should vote on the deal, once the government have concluded negotiations. It may have been a lone victory, but it was an indispensable win.
As is only right, given the hung parliament and the divided state of the country, the government cannot be allowed to dictate the terms by which we leave the EU. Yes, the referendum was a binary option of in or out of the EU, but every decision by the government since has been a choice and their choices have all been designed to create the most extreme and damaging Brexit. The referendum ballot paper was silent on the question of our future relationship. Therefore, the government must seek a separate democratic mandate for the Brexit terms. And that is what the Grieve amendment successfully did: re-inserted parliament into the process as a check against the hard Brexit the Tories are seeking to impose.
Debate on a huge number of issues was curtailed or not voted on in the Commons because of the lack of time afforded for the discussion. It is notable that the debates on the Maastrict treaty in the Commons in the 1990s took up 41 days of parliamentary time. Maastrict altered our relationship with Europe. The government’s current bill risks severing the relationship altogether. But the Commons debated the withdrawal bill for just 15 days.
This means that the impact of the withdrawal on the devolved institutions did not have as much debate as it should have received. It is obvious that the government should be seeking the approval of the devolved institutions for their withdrawal bill and several amendments from Labour and the nationalists were overlooked or given insufficient time.
What is more, debate was curtailed on our membership of crucial non-EU institutions like the European Economic Area and the European free trade area. These non-EU arrangements could protect our membership of the single market and the customs union. It remains unclear what the precise process will be for leaving these institutions and that is a problem the Lords may wish to wrestle with at length.
Then there is the business of protecting the United Kingdom from the disastrous consequences of no trade deal at all with the EU. While John Redwood said many times in the debate that World Trade Organisation rules are nothing to be feared, this is simply not the case. The WTO’s rules principally address tariffs on industrial and agricultural goods but not all the other frictions that operate at the border. Services face regulatory barriers behind borders not tariffs. The WTO will not help us there. If we wish fully to maintain our trade with the EU we will need a preferential agreement between us that governs both goods and services. Such an agreement – if we manage to negotiate this in years to come – will never match the enforceable rights to trade we have now in Europe’s internal market which is why, if we leave the EU, we should continue to operate within its economic structures if we want to sustain our trade and complex cross border supply chains.
The case is also building for allowing the public a final say, once it is clear what sort of deal the government has struck with our European partners. This is not a re-run of the original referendum but a new question that enables the public to take a definitive view on what is on offer as an alternative to EU membership. Without a general election, such a final say is impossible and surely must be properly considered as the withdrawal bill lays down the path for exit.
The peers will be more than aware of all of these problems when they receive the bill. Their job is to provide the bill with the more extensive and detailed scrutiny that the Commons – because of the tight control the government has – could not.
And let us be honest, as Labour campaigners for the single market, the customs union, and to keep our EU membership on the table if we are faced with a worse deal than we have now, we stand a greater chance of success in altering the route map in the Lords than we do in the Commons.
The first reason that the Lords have an inbuilt advantage is numbers. The Tories may still be the largest party with 248 peers. But add 197 Labour to 100 Liberal Democrats, and it does not look so great for the government. Then there are the 183 crossbench members of the Lords. This makes the House of Lords essentially uncontrollable via the whipping system.
The second reason is the constitution. The Lords, by convention, do not stand in the way of manifesto commitments. But this convention is complicated by the general election that Theresa May chose, of her own free will, to hold last year. In the House of Commons no one party can hold sway alone. So, whose manifesto to defer to? It is a difficult question at the best of times, never mind when deciding something as complex and far reaching as Brexit.
The third and crucial reason is the expertise that the House of Lords boasts. This is not a defence of the appointments system, however it is a fact that the current House of Lord boasts 11 former permanent secretaries, 26 former ministers and 39 former cabinet ministers.
So, when it comes to digging out the truth about the government’s plans for Brexit, the Lords is a pretty incredible second court of opinion. It is not a defence of the unelected nature of the upper house to say that this is just the sort of time when the current occupants of the red benches need to come into their own.
The mass ranks of Labour, Liberal Democrats, rebel Tory, nationalist and independent-minded crossbench peers will be hard for the government to shoot down. The Lords will need to marshal strong arguments to alter the path of Brexit and they will need to think carefully about how best to put in place the constraints that will stop our country being dragged down the cul-de-sac of a bad deal, or, even worse into the abyss of no deal at all.
And like all of us who want to stop the Tories’ destructive Brexit, peers will need to be smart. The withdrawal bill is the beginning of the process, not the end. We need to persuade them to re-engage with Brexit having resigned themselves to the country’s fate. At the general election, when the Tories lost their majority, the country refused May a mandate for a hard Brexit. Since then the government have carried on regardless, insisting that they, and only, should determine the terms of our future relationship with the EU. This needs a new direction and therefore a fresh mandate and parliament, through its own vote, can give the public the final say on this future. Both May and Jeremy Corbyn failed to get a mandate for their own party’s approach to Brexit. That is why the issue should go back to the public to determine. In the end, to win, we need an inclusive vision for our country that can bring ‘Leave’ voters and ‘Remain’ voters together. That way, we can win, not just in the Commons, or in the Lords, but for every single person in Britain.
Peter Mandelson is a peer former EU commissioner for trade and Alison McGovern is member of parliament for Wirral South and co-chair of the Labour campaign for the single market. She tweets @Alison_McGovern.
The Labour Campaign for the Single Market seeks to shift Labour party policy into one of unequivocal support for staying in the single market by remaining a member of the European economic area and the customs union. To support the campaign, sign up here: labour4singlemarket.org
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