Lording it over Brexit - the EU Withdrawal Bill moves to the upper house

Constitutional crises are like buses. You wait ages for one to come along and then several line up at once.

The ink on the independence referendum ballot was barely dry – at least on the papers penned by cautious Nats with ballpoints to foil rubber-wielding, vote-tampering Yoons – before the Brexit campaign began in earnest.

The vote to leave the EU against the wishes of Scotland and Northern Ireland fractured the country just as it seemed it was finally coming together once the issue of Scottish independence had been dealt with.

The Scottish nationalists won a big consolation prize with a raft of new powers in the Scotland Act, which also stated that Westminster will not “normally” legislate on devolved matters without Holyrood’s consent – the first time the so-called Sewel Convention had been written into law.

However, the Supreme Court later decided that this ‘convention’ can still be ignored by Westminster even though it’s written into law, in ink and everything, and they don’t even need a rubber.

Then Theresa May’s failed bid to secure a majority with her snap general election landed her with a minority government, forcing her to turn to Northern Ireland’s austere Democratic Unionist Party for crucial votes and potentially reopening the historic rifts on Ireland that everyone thought were settled decades ago.

Scotland and Wales are angry at a “power grab” of devolved competences by the UK Government, which intends to repatriate all Brussels powers – including those which touch on devolved areas – to London in the first instance and then decide what to dole out at a later date.

Now we’re in a right old mucky mess. The UK Government had promised to bring forward amendments to address the devolution concerns when the bill came before the House of Commons earlier this month, but they never got round to it.

Damian Green’s resignation as first secretary of state five days before the Christmas holiday was reportedly to blame. 

Green had been leading the UK Government’s Brexit negotiations with the Scottish Government, until he faced allegations of inappropriate behaviour towards journalist and Tory activist Kate Maltby. He denied suggestions that he made unwanted advances towards her in 2015.

He also denied that he had either downloaded or viewed pornography on a computer removed from his Commons office in 2008 and said police had “never suggested to me that improper material was found”.

In his resignation letter, Green said statements he made about what he knew about the pornography could have been “clearer”, conceding that his lawyers had been informed by Met Police lawyers about their initial discovery in 2008 and the police had also raised the matter with him in a phone call in 2013.

His departure reportedly meant there was no minister or special advisers in Whitehall able to shepherd the devolution amendment through over the Christmas recess.

Labour tried to steal a march on the Tories with their own amendments, backed by the SNP, but they were cast aside by the Tories and their allies in the Commons.

The Scottish Conservatives are also mighty miffed at the absent amendments, which have handed the nationalists another knife to twist in their ongoing campaign to secure even more powers for Scotland and take one step closer to their ultimate aim of independence.

Scottish Conservative constitution spokesman Adam Tomkins said he was “deeply frustrated and disappointed” that the amendments had not been made yet, as he had been led to believe, apparently by his own party, the bill would have been changed.

Scottish Conservative MP Stephen Kerr urged the UK Government not to underestimate the “depth of disappointment and frustration” he and his colleagues felt over the delay.

“The government had control of the timetable, the deadlines were created by them, but they have let this chamber down by not delivering on what they promised,” he said.

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He said the Scottish Government had approached negotiations over the bill with its “usual wrecking ball mentality” in order to “create a constitutional crisis” and further its aim of holding a second independence referendum – but nevertheless conceded that the bill was leaving the Commons in an “unsatisfactory state”.

However, the Scottish Tories’ frustration did not extend to voting with their feet, as all 13 of their MPs voted with the UK Government to reject Labour’s amendments.

Nicola Sturgeon predictably called them “lobby fodder” and SNP MP Stephen Gethins accused them of a “shameful abdication of duty” by backing a bill which “actively undermined the foundations of devolution”.

Shadow Scottish secretary Lesley Laird said the amendment fiasco “shows nothing but contempt for democracy” – so Labour and the SNP will, ahem, cry foul to the unelected House of Lords.

The SNP refuses to send its great and good to the Lords, which they regard as a “democratic abomination”, but that won’t stop Mike Russell lobbying them behind the scenes ahead of their Brexit negotiations.

The Brexit minister will join Mark Drakeford, the Welsh Government’s Finance Secretary, to address Labour peers on the “devolution aspects” of the EU Withdrawal Bill.

Other speakers will include the Liberal Democrats’ Lord Wallace, the former deputy first minister, and Sir Emyr Jones Parry, a former diplomat and Foreign Office mandarin, who chairs the All Wales Convention on increasing the Welsh Assembly’s powers.

Labour’s Lord Foulkes said if MSPs refused to give their consent, then “one of the possible options” is that the unelected chamber could try to stop the legislation in its tracks.

The Conservatives do not have a majority in the Lords, so it has the numbers to reject the Withdrawal Bill if the promised devolution amendments don’t go far enough to satisfy peers.

“People say the House of Lords has no legitimacy but if there is no legislative consent motion then we could say we would be doing what the Scottish Parliament wants us to do,” said Lord Foulkes.

Liberal Democrat peer Lord Campbell said it was “not impossible” that the Lords could attempt to block the legislation if MSPs withheld their consent. 

“An attempt could be made but I would not bet the farm on it being successful,” he said.

The Commons usually reserves the right to ignore the will of the Scottish Parliament and the House of Lords, albeit at great political cost.

The Parliament Act allows MPs to force through legislation rejected or changed by peers in the following parliamentary session and, as previously mentioned, the Sewel Convention has no legal force.

But with little more than a year to go until Brexit, the Commons might not have time for a reset.

The current parliamentary session was extended to two years so MPs have time to pass Brexit laws needed by March 2019, which means the government won’t be able to overrule the Lords on Brexit until the middle of 2019 – after the UK is due to leave. 

The prospect of the Lords revolting over Brexit has angered their most staunch supporters in the Conservative Party, which has resisted calls for reform of the unelected chamber for decades.
Even Jacob Rees-Mogg, that great defender of fusty British traditions, has said the Lords is not fit for purpose if it can overturn the will of the Commons – but his solution is positively medieval.
Rather than reforming the Lords to bring it more into line with the will of the electorate, he has urged Theresa May to appoint hundreds of new Tory peers to outvote the sitting ermine-clad Remoaners.

“She should keep up her sleeve the ability to appoint enough peers to get business through,” said the Tory MP, who is chairman of the European Reform Group.

“If the House won’t play by the constitutional rule book, then the PM has to use the extra measures available to her – it could be a couple of hundred. There is no point in going off half-cock.”

His solution exposes the inherent unaccountability of the Lords. If the government doesn’t like what the Lords have to say and doesn’t have time to silence them, it can simply drown them out with an army of yes men (or should that be yah men?). Why not simply reduce the Lords one peer per party and give the Tory peer a big stick? The democratic deficit would be the same.

When someone as entitled as the son of Baron Rees-Mogg of Hinton Blewett in the County of Avon says the Lords is not fit for purpose – you know the constitutional crisis has been turned up to 11.