Anti-Brexit obstructionists in the House of Lords should be threatened with a Great Culling Bill

Anti-Brexit obstructionists in the House of Lords should be threatened with a Great Culling Bill

If the Supreme Court rejects the Government’s appeal against the High Court judgment in the Article 50 case today, the Government’s next step will be to introduce a short Bill to Parliament which will authorise the Prime Minister to trigger Article 50. The Bill will be passed by an overwhelming majority of the House of Commons. Despite the hopes of those behind this pointless litigation, it seems fairly clear that the House of Lords will not dare at this stage block the legislation necessary to give effect to the decision of the British people in the referendum.

But that will not be the end of the Government’s problems with the House of Lords. Its composition means that it would cause trouble enough for a majority Conservative government just seeking to implement its ordinary manifesto. But for a government committed to honouring and implementing the decision of the British people to leave the European Union, it threatens to be little short of a disaster area. The Lords now has a huge in-built pro-Remain majority, thanks to the way in which successive Prime Ministers have exercised their patronage.

One of the most notorious and overt of the Referendum-deniers in the Lords is Baroness Wheatcroft, who last September claimed that there were “dozens” of peers who wanted to stop, delay or “revisit” the result and made clear that she would be using her place in the House of Lords to seek to block it. Her remarks provoked anger from a number of other peers, not because they disagree with her objectives or with the principle of what she wants to achieve, but because she gave the game away in such a public manner.

The Government’s problems with the Lords will really start when it comes to debate the Great Repeal Bill – the measure necessary to adjust British domestic law to conditions outside the EU. Optimists hope that something akin to the Salisbury Convention will impose some constraint: that is the convention under which the Lords will not oppose the principle of legislation foreshadowed in the general election manifesto of the winning party. It is hoped that the Lords would display the same degree of deference to the vote of the people in the referendum.

However, the Great Repeal Bill will necessarily be complex. It will involve numerous issues quite apart from the general principle of leaving the European Union, including constitutional issues relating to the way in which laws are to be adjusted.  There will be room enough for trouble-makers in the House of Lords to wreck the Bill with amendments or talk it out with endless debate, while paying lip service to the Salisbury Convention and arguing that they are only revising the Bill and not opposing it.

What is the answer to this problem?  One answer is to invoke the Parliament Acts 1911-1949 to pass the Great Repeal Bill over any objections of the House of Lords.  The problem with this approach is that it takes time – a delay of well over a year into a second session of Parliament. However, the constrained timetable of Article 50 means that it will be essential that the Repeal Bill becomes law as soon as possible in order to allow orderly arrangements to be made in good time before for the day of exit in March 2019.

The second possible solution is the one which was threatened in 1911, and which forced the House of Lords to back down in its constitutional conflict with the Commons: the Prime Minister would recommend the creation of hundreds of new peers in order to out-vote the pro-Remain obstructionists in the Lords.

This, however, poses serious problems today. There are now 806 voting members of the House, so a huge number of new peers would need to be created. Further, it is not clear how long this process would take since the arcane procedures of the House of Lords limit the number of new peers who may be introduced to one or two on each sitting day.

It is the huge size of the present House which poses the problem, but also points to the inevitable solution. Following a debate before Christmas, the House of Lords unanimously passed a resolution calling on Parliament to reduce its numbers. The Speaker of the House of Lords, Lord Fowler, was reported in the Telegraph as advocating that the numbers should be “cut by a quarter to as few as 600 after the 2020 election to restore confidence in it”.

Lord Fowler’s thinking is along the right lines, but both the timescale and the numbers need to be rather more ambitious.

The solution is to introduce, as a companion measure to the Great Repeal Bill, a Great Culling Bill. This Bill, officially entitled the House of Lords (Reduction in Numbers) Bill, would be very simple indeed. It would provide that any life peer created before 31st December 2016 shall cease to be a member of the House of Lords. The reason for this date is to ensure that the Bill catches the final tranche of peers ennobled in the Cameron dissolution honours list, as well as the swollen numbers sent to the Lords over the past 20 years of previous Blair, Brown and Cameron patronage.

This Bill would be accompanied by an announcement that the House would be re-stocked with members, including by granting renewed life peerages to existing peers who have worked hard in the service of the House and who fulfil the essential criteria for the balance of the House. The first and primary criterion for balance is that the House after the reduction in numbers and re-stocking should have a pro-Leave majority. This would enable the House to perform its proper function as a revising chamber, rather than act as a wrecking chamber. Subject to that, the second criterion is that the House should broadly reflect party support at the 2015 General Election.

Notably, the Bill would avoid touching the hereditary peers, the bishops, or the functions and powers of the House – all contentious matters which have derailed Lords reform Bills in the past. More profound reform of the House would be a matter for 2020 General Election manifestos and for the next Parliament.

But, a reader may ask, how could the House of Lords as at present constituted be expected to vote for this Bill? The answer is that they would not do so, but they would not need to.

The key point is that the Great Culling Bill should be introduced into the House of Commons and receive its Second Reading at the earliest possible date. This is the critical date under the machinery of the Parliament Acts. Thereafter, the Bill could meander through its stages in the House of Commons so long as it receives its Third Reading and is then sent up to the House of Lords at least one month before the end of the then current session of Parliament. What the House of Lords then did with the Bill would not matter. It could debate it or not debate it, or use it as scrap paper or for other useful purposes.

The House of Lords would however be deemed to have rejected the Bill for the first time under the Parliament Acts.

The next stage would come in the following session of Parliament, with the Great Culling Bill needing to be reintroduced into the Commons, put through its stages, and then sent up again to the Lords a minimum of one year after its original Second Reading debate in the Commons in the previous session. At this point, if the House of Lords rejected the Bill or passed it with any amendments at all, under Section 2 of the Parliament Act, the Bill would be passed immediately to Her Majesty for Royal Assent in the form passed by the Commons.

The House of Lords has some very limited potential for delay, by debating the Bill and neither passing it, amending it, nor rejecting it. But the Bill would be very simple, and the government could simply clear the House of all other business until it had reached a resolution (of any kind) on the Bill. At this point the Bill would be passed for Royal Assent either with or without the assent of the Lords, the guillotine would fall and the life peers appointed in 2016 or before would cease to be members of the House of Lords.

Why introduce the Great Culling Bill at an early stage rather than waiting to see what happens to the Great Repeal Bill first? The first reason is one of timing – as already explained, there is significant delay in the Parliament Act procedures and if they are only embarked on at that stage it could well be too late.

The second reason is that the introduction of the Great Culling Bill is likely to have a salutary effect on the behaviour of the House of Lords. Each step of its proceedings through the Commons would be like the blade of the guillotine being winched up towards to the top, witnessed by our new ancien regime in the Lords. Lords who wish to remain members of the House after the reform takes place would be well advised to support a smooth passage for the Great Repeal Bill. Indeed, if that Bill does go safely and smoothly through the Lords by the end of the first session, it might not even be necessary for the guillotine blade to be released in the second session of Parliament.