Could the House of Lords thwart Boris Johnson’s Brexit plans?

The days of an inbuilt Conservative majority in the upper chamber are long gone, writes Sean O'Grady

The PM is under fire for making changes to the 'oven-ready' deal (Getty)

By far the most ominous recent public intervention in the arguments about Brexit came from Michael Howard, the former Conservative leader (2003 to 2005). Now Lord Howard, he is a man of impeccable Eurosceptic credentials, voted for Brexit and has thus far loyally supported the government. But for this distinguished barrister, the overt threat to break international law and renege on the EU withdrawal agreement was just too much to bear. He put the case succinctly in a question to a government minister: “How can we reproach Russia, China or Iran when their conduct falls below internationally accepted standards, when we are showing such scant regard for our treaty obligations?”  

There are many Tories – many more than in the Commons  – who agree with Lord Howard: Lord Heseltine, Lord Lamont and other grandees across the chamber. In other words, Lord Howard is not one of the “usual suspects”, and evidence of dissent in the Commons will add to the forces of resistance in the Lords.  

The questions are whether they Lords are entitled stop the government’s move to override the withdrawal agreement via the internal market bill, and whether they will.

The first is a tricky one. Formally, under the 1949 Parliament Act the Lords can delay legislation for a year. However there is also the Salisbury Convention, dating from the time of the Attlee government, that the Lords will give way, and not delay, bills promised in the governing party’s manifesto. Here the picture is far from clear, and indeed is topsy turvy. The withdrawal agreement was, after all, the “oven-ready deal” and the centrepiece of last December’s Tory manifesto and election campaign. The government promised to implement it and the Lords, against their better judgement, passed it.

Yet now it is the government which seeks to change it, and partially abandon a manifesto pledge, thus turning the Salisbury Convention on its head. The Lords would now find itself defending the Conservative manifesto pledge, rather than overturning it. There was certainly nothing in the Conservative manifesto about scrapping parts of it or breaking international law in a specific and limited way. There was not much explicitly promised in the manifesto about the internal market bill and nothing about it overriding the oven-ready deal.  

The Lords would thus feel entitled to amend the bill and send it back to the Commons to be reconsidered. If the Commons rejected that and sent it back to the Lords it would be the subject of a game of ping pong. Time is short, and on the side of the government’s opponents. Delaying the bill means forcing the government to compromise with Brussels.  

But are there the numbers in the Lords to defeat the government? The days of an inbuilt Conservative majority are long gone, so it is in effect “hung”, with a certain majority against “no deal”. Despite the arrival of such arch Brexiteers as Kate Hoey, Ian “Beefy” Botham and Claire Fox, that is unlikely to change. Parliament published this summary of voting strengths in 2017:

Conservative: 31%

Labour: 26%

Cross benchers, Independent: 22%

Liberal Democrat: 14%

Brexit Party: 3%

Other: 5%

In theory at least, the government could be defeated even if all Conservative peers stayed loyal, which we know they will not (though how many peers would actually turn up to vote is open to speculation).  

Defeating a government is something the Lords never do lightly. They dislike defying the elected chamber, and won’t do so on manifesto pledges. But the Lords do take their duty to improve and refine laws seriously, and try to protect the constitution. Tory peers are less easily threatened than are MPs by losing the party whip, as they’ve little to lose. The Conservative manifesto contained a thinly veiled threat to neuter the Lords, but that seems a weak deterrent. Permanently vetoing an important piece of Brexit legislation was something the Lords drew back from in the last parliament, because of the 2016 referendum result; but circumstances are very different now.  

The radical solution would be for Boris Johnson to just create, say, 100 or 200 new loyal Conservative peers to swamp the opposition. It is the option that used to be advocated by the left of the Labour Party, to force a socialist programme through this most reactionary body. Today the newly populist party of Johnson might be tempted to do just that. However it would have to be done by the Queen on the advice of the premier. That would be bitterly opposed by the opposition parties and many Conservatives too, and drag the monarchy into party politics. Crucially, there was obviously nothing in the Conservative manifesto about creating a huge wedge of “Boris barons and baronesses” to force through a hard Brexit, so the Queen might ask why she was being asked to do this without a democratic mandate. The historical precedents dating back to 1910 suggest a fresh general election would be needed to give the move legitimacy. The palace would also hate reliving the controversies experiences during last year’s unlawful prorogation of parliament. Yet again the Supreme Court might have to adjudicate, applying lessons from the time of George V and HH Asquith to today’s different world.  

Given the dissentient mood in the Commons, and badly divided opinion among the public, the House of Lords  might well be emboldened to act and hold its nerve. It would be a strange finale to “take back control”.