The House of Lords again flexes its muscles on Brexit – but peers should be careful about trying to frustrate the will of the people

The House of Lords again flexes its muscles on Brexit – but peers should be careful about trying to frustrate the will of the people

The House of Lords European Union Committee has set itself on a collision course with the Government with the publication of its report on Parliamentary scrutiny of Brexit this morning.

Although the report stops short of calling for a formal scrutiny reserve resolution (“at this stage”) to legally bind ministers’ actions, and is careful to deny suggestions from ministers that it is seeking to “micromanage” the negotiations, it nonetheless calls for measures that have the potential to impinge on the Government’s ability to manoeuvre swiftly and decisively during the negotiations.

Essentially, the report demands that Parliamentary Committees be provided with a “wide range of documents relevant to the negotiations” in “sufficient time for the Committees to provide comment to Government and for the Government to take those views into account”. The Government would then be expected, if not legally obliged, to “respond to any formal recommendations on the negotiations made by Committees and give reasons for any it does not accept.”

Whilst it is not entirely clear what this process would involve in precise practical terms, it is fair to say that adding an onerous exercise in protracted to-ing and fro-ing between the Government and a plethora of Parliamentary Committees at every stage is hardly likely to streamline the negotiating process, particularly when the report simultaneously stresses the importance in its eyes of securing at least some sort of deal, whether transitional or permanent, within the two-year Article 50 negotiation period.

Moreover, the report argues that the Government is in fact already bound to do this, and here the Committee does potentially have a point – David Davis did undertake to “certainly match and, hopefully, improve on what the European Parliament sees” when previously giving evidence to the Lords EU Committee on the question of what level of access to information Parliamentarians would receive. It will be interesting to see how the Government responds to this.

Perhaps most significantly, the Committee calls for a debate and a vote on the Government’s negotiating strategy in both Houses of Parliament before the negotiations begin. Lord Boswell, the Chair of the Committee, is clear in saying: “Parliamentary scrutiny should start before Article 50 is triggered, with the Government asking Parliament to approve the negotiating guidelines.”

This is materially the same demand as in the case brought by Gina Miller to the High Court last week – you can read my piece about that case here – the outcome of which is yet to be determined, as the Committee notes with interest in its report. Miller has claimed that the case was about “process not politics”, although that has not prevented her underlying motives being called heavily into question.

Given the heavily pro-Remain makeup of Parliament – overwhelmingly so in the Lords – and hence the inherent difficulty of passing a vote on Article 50 in a reasonable timeframe, it seems only fair to question the underlying motives behind this latest demand from the Lords EU Committee as well – a committee which includes Lord Liddle, who was Tony Blair’s special adviser on Europe before going off to work for José Manuel the European Commission; the former Lib Dem MEP Lord Teverson; and Baroness Brown of Cambridge, co-signatory of the open letter from university Vice-Chancellors against Brexit – to name just three Remain supporters among its members.

Much as there is a reliable conveyor belt transporting many of Europe’s politicians facing failure in their own domestic arenas to the safe havens of the European Parliament and Commission, there has similarly been a steady stream of ‘Brussels Club’ alumni coming back the other way to be welcomed into the Lords with open arms.

This, combined with the significant over-representation of the Europhile Lib Dems and the bureaucratic background of many of its appointees, has left the Upper House completely out of step with the general population in its attitudes towards the EU.

At a time when Lords reform is firmly back on the agenda, peers should be very careful that they do not, by attempt to frustrate the will of the electorate, shift public opinion sufficiently that, rather than waiting for the Lords to give in, the public decide that the easier solution would simply be to get rid of them altogether, at least in their current form.

Lord Stoddart made this point excellently on BrexitCentral last month – and his colleagues would be well advised to heed his warnings.

It smacks of more than a little wishful thinking, with a faint whiff of disingenuity, to suggest that sending a legally-mandated shopping list of demands to Brussels whilst simultaneously tying the Government’s hands behind its back is somehow the best way to enter the negotiations with a view to securing the optimal Brexit outcome for Britain.

The more the Government is restricted in its ability to compromise and negotiate, and the more the European Commission is able to identify the weaknesses in its negotiating position, the easier it will be for the EU to back the UK into a corner and force us into accepting a deal on its own terms, rather than on terms that are ultimately the most mutually beneficial.

The public themselves will be able to distinguish between genuine attempts to support and enhance the process and cynical attempts to bog it down with spurious delays. Parliamentarians – and peers in particular – should be certain that their actions are of the former kind, otherwise the backlash from the public may be severe.