Theresa May has declared that “We are all Brexiters now.” Oh no, we are not. I remain a Remainer and so do many of my colleagues on the Conservative benches in the House of Lords.
Across the Chamber, there is an overwhelming majority in favour of Britain’s continued membership of the European Union. The questions put to ministers in the weeks between the referendum and the summer recess made it clear that peers were not prepared to concede defeat and keep quiet about their qualms. That may lead to some challenging, and potentially dangerous, waters ahead.
Most Conservative peers recognise that to join calls for a second referendum now would be to risk derision: an unelected elite attempting to overturn a democratic decision of the electorate. It was a relatively slender majority, secured on the basis of a campaign of false promises, including that infamous extra £350m a week that would be available to the NHS if we were to leave the EU, a cynical confusion of gross and net which would bankrupt any business within months. Even so, we have to respect the result. But the referendum is only the first step in a process which has yet to be mapped out and may allow plenty of scope for the Lords to flex their pro-Europe muscles.
David Pannick QC, a cross-bench peer, is leading on the court case which could culminate in a battle between the Lords and the Commons. The case centres on the triggering of Article 50 of the Lisbon Treaty, the point at which, arguably, the country is set inexorably on the road out of the EU. The prime minister has said that she will not press that trigger before 2017, but the question is whether she can take that action alone.
The government position is that, through the exercise of the Royal prerogative—a wonderfully British constitutional nicety—the prime minister has the right to turn a referendum vote that was merely advisory into an action with huge ramifications. Pannick argues that there should be an Act of Parliament to activate Article 50.
The case is almost certain to be argued all the way up to the Supreme Court and the ultimate decision will be made by late autumn. It will not just be his cross-bench colleagues who are willing Pannick to victory but a majority of the Lords. They will be hoping for a Bill that gives the opportunity to make a difference or, as it will appear to the new government Department for Exiting the EU, to make trouble.
Both David Cameron and Theresa May have given assurances that there will be parliamentary involvement before Article 50 is activated. Even though the government is contesting the Pannick case, there is an acceptance that, whatever the legal position, from a political viewpoint it might not be advisable to attempt to bypass parliament. Given that parliamentarians in both houses were heavily in favour of “Remain,” this poses problems—but those problems are far greater in the Lords, where being unelected fosters a degree of independence which can be irritating, even infuriating, for governments.
In October last year, the Lords defeated the plans of the then Chancellor, George Osborne, to cut tax credits. He was so furious that he and the prime minister set up a review to constrain the power of the Lords over financial matters or statutory instruments. He subsequently discovered the cash not merely to delay the tax credit cuts, as the Lords had wanted, but to abandon them altogether.
Faced with an even greater rebellion in the Lords on Article 50, the government might, if it had the option, choose to restrict parliamentary involvement to the Commons only, where it has a working majority of 16. Whatever their personal views, many MPs of all persuasions might feel that they would have to vote in line with their constituents, bearing in mind that they will be coming up for election again. The power of the whip should ensure that the prime minister would have Commons support to activate Article 50.
Steering a Bill through both Houses would be much harder. There are just 243 Conservative peers out of a total of 798. While among them there are some vociferous outers, including former Cabinet members Nigel Lawson, Norman Tebbit, Norman Lamont and Michael Forsyth, there are many equally vocal Tories for “Remain.” With no constituents to fear and a conviction that remaining in the EU and helping it reform would be a much better option than plunging into the unknown, they would defy the whip, which cannot inflict the same pain as it does in the Commons. The Lords would be resoundingly “not content” and could remain a blockage to the legislation for up to one year.
Much might change in that time. The EU might even concede that the UK was not the only country which needed to see some curbs on free movement and make changes. Then their lordships might argue that there was a good reason to call that second referendum and hope for a very different result.