How Viscount Hailsham’s amendment to the EU Withdrawal Bill could let peers block Brexit

How Viscount Hailsham’s amendment to the EU Withdrawal Bill could let peers block Brexit

When Viscount Hailsham the elder elucidated the theory of the “elective dictatorship”, he was referring to the executive power a government with a large Commons majority can wield. When he gave his 1976 speech, the EEC was but a toddler and the Lords respected their role as a revising chamber. The Commons was supreme.

42 years later and Viscount Hailsham the younger (better known as ex-MP Douglas Hogg) has come up with his own far more audacious version of the “unelective dictatorship” – a plan for their Lordships to overturn Brexit. Yes, the unelected House overruling not just the Commons, but the largest vote in UK democratic history. This is as ambitious as it is foolhardy.

The plans are contained in his proposed amendments to the European Union (Withdrawal) Bill due to be debated and voted on during Report Stage on Monday 30th April in the Lords.

One is overt – a new clause (NC50) asking for a second Brexit referendum – and one is not. The covert plan is contained in New Clause 49 (NC49). NC49, if passed, would allow the Lords to delay, frustrate and ultimately reverse Brexit. Here’s how it would work.

The Hailsham clause sets out to provide a mechanism to force the government to re-negotiate its Withdrawal Agreement with the EU if a number of separate triggers are pulled. These triggers are carefully designed so as to allow the Lords to pull them without the interference of the democratically-elected House.

The first trigger is carefully disguised. In sub-section (1)(a) it provides that the Withdrawal Agreement itself needs to be “subject to the consideration of a motion in the House of Lords”, which in practice would give the Lords a veto. The government could bring forward a motion and their Lordships could remove it. As it states at page 496 of the 24th edition of parliamentary rulebook Erskine May concerning motions in the House of Lords:

“It is open to any Lord to call attention to a question or motion which has appeared on the Order Paper or in the House of Lords Business and to move that leave to ask the question (or move the motion) be not given or that it be removed from the House of Lords Business. Such a motion should only be used in the last resort…”

The second trigger is concealed in sub-section (7): that Parliament must pass the Act of Parliament relating to the domestic implementation of the Withdrawal Agreement by 31st January 2019. There is a tight deadline to pass this Act by Brexit day, 29th March 2019, and their Lordships – over whom the government cannot enforce a timetable – could easily filibuster their way into February.

So the Lords could block the Withdrawal Agreement. Well, that on its own would neither be a disaster nor something that would prevent Brexit. It is what comes next that would allow them to throw not just a spanner but a full toolbox in the Brexit machine.

Having triggered the provisions in the New Clause, their Lordships would direct the Commons to sub-section (5). This sub-clause section states that:

“Her Majesty’s Government must follow any direction in relation to the negotiations under Article 50(2) of the Treaty on European Union which has been—
(a) approved by a resolution of the House of Commons, and
(b) subject to the consideration of a motion in the House of Lords.”

Under this sub-section, following a Lords veto of the Withdrawal Agreement, the Government would bring forward a motion, potentially to proceed without a deal. This could be amended by the opposition and/or vetoed by the Lords.

The atmosphere in which this part of the clause is triggered would be febrile. It would, by necessity, be weeks away from Brexit day – a situation in which the EU would be unable to re-open negotiations, even if it wished to.

We would have Brexit day looming, Remain-backing organisations such as the CBI and IoD fretting about the loss of the transition period, the Government unprepared for an unexpected exit, the EU refusing to re-negotiate… Then helpfully the EU could suggest a delay in Article 50, staying in the EU or remaining in the Single Market/Customs Union, for a price of course. The Labour Party in the Commons would undoubtedly back it.

That is their Lordships’ plan: throw as much mud as possible into the system and hope it fails. Such a strategy would, of course, wreak immeasurable damage to the Government’s negotiating position – why would the EU offer a deal when the Lords can help deliver an even better one for the EU? Holding open the option of Remain is a recipe for a bad deal, which in turn leads to an excuse for the Lords to reject the Withdrawal Agreement, leading to Remain – a self-fulfilling legislative prophecy.

Now, the way the Hailsham New Clause is drafted leads something to be desired. It is difficult to follow, ambiguous and riddled with vague definitions. Why is there a need for sub-section (8)? Why does its definition of motion lack the precision of the Fixed Term Parliament Act? Why does it not set out clearly the difference between a ‘draft’ of an ‘agreement’ and an agreement that has been ‘reached’? What happens if the Commons cannot agree or Lords vetoes any directions? However, despite this sloppy drafting and careless use of language, it is no doubt the product of an intelligent mind.

Given that, it begs the question: how can an intelligent lawyer not see that the outcome of this clever piece of law – reversing Brexit – would, if successfully passed, be an utter disaster for the Lords, the country and our democracy? The idea of the unelected House dictating that we remain in the EU would be akin to an unelective dictatorship. Have their Lordships thought that one through?