The Upper House must act responsibly

For the first time in two centuries, a Conservative government does not have a majority in the House of Lords. The last majority Tory administration predated the removal of the hereditary peers by Tony Blair. Under both Labour and the Coalition, dozens of Lib Dems were sent to the Lords, often matched seat-for-seat by Labour. As a result, there are now 310 Opposition peers and 206 Tories, with 150 non-aligned cross-benchers, 26 bishops and about 34 unaffiliated “others”.

The Conservatives hold less than a third of seats and can readily be defeated by various combinations of other forces. In normal times, this should be problematic for the Government only when it strayed from its manifesto. Under the Salisbury Convention, the Lords do not stop the Government enacting the policy platform on which it was elected. But these are not normal times. How Parliament handles the decisions needed to extricate the UK from the European Union will be one of the greatest challenges it has faced.

Moreover, since the referendum vote was not anticipated by the Conservatives in their manifesto, the Lords may take the view that while the country has voted to leave the EU it has not expressed an opinion on how it should be done. If Theresa May’s government adopts a negotiating position opposed by Labour and the Lib Dems – most of whom do not want to leave the EU at all – where does legitimacy lie?

The straightforward answer is with the elected chamber – but no party can claim a mandate for “hard” or “soft” Brexit. In addition, Brexit is a constitutional matter of the sort on which the Lords traditionally feel they have a right to take a stand.

This leaves peers in a powerful position but also a dangerous one. If they are seen to thwart the perceived wishes of the people in the referendum it could be curtains for the Upper House. Last year, the Opposition voted down tax credit changes proposed in the Budget and three times upheld by MPs in contravention of the procedure laid down in 1911 that the Lords cannot block budgetary matters.

Opposition peers argued that because the measure was brought forward by way of a statutory instrument and the primary legislation was never certified as a Money Bill they were not bound by the Parliament Act. But this was casuistry; whatever its legislative provenance, it was a budgetary matter. The fact that the Government later abandoned the tax credit changes was a political decision that did not affect the constitutional impropriety of the Lords’ action.

As a consequence, the Government commissioned a review chaired by Lord Strathclyde, a former Leader of the Lords, to consider the powers of the Upper House. He made a number of recommendations, including a statutory bar on peers vetoing secondary legislation. For now, the Government has decided not to proceed with these reforms. “As we find ourselves considering the legislation resulting from the decision to leave the European Union, the constructive approach this House has so far shown will be ever more important” the Leader of the House, Baroness Evans, told peers yesterday. The reprieve was accompanied by a threat to curtail the power of the Lords if they failed to show “discipline and self regulation”.

This seems to portend a more emollient approach by Theresa May because she can see considerable legislative problems ahead. Thousands of statutory instruments may need to be put through to unravel the UK’s relationship with the EU as part of the planned Great Repeal Bill. There may also be a moment next year when Parliament has to vote on Article 50 and the Lords will have the wherewithal to stop Brexit in its tracks.

For this reason, Mrs May needs to bring MPs with her in this process: if she has support in the Commons, then the Lords will be unlikely to stand against the Government. What matters most now for the country is to fulfil the outcome of the referendum without further political upheaval.

As with the forthcoming Supreme Court adjudication on whether the Government has the prerogative power to trigger Article 50, we are entering dangerous constitutional waters that will require very careful navigation if a serious crisis is to be averted. The House of Lords and our judges have a responsibility to make sure that it is.