Things have now moved on in the House of Lords. The original Brexit bill has been amended.
The amended bill does two distinct things:
First, it downgrades what would be a governmental duty to trigger Brexit into a option to trigger Brexit. This is a curious change as no one seems to be seriously suggest that the politics of the situation are pointing away from the triggering of Article 50;
Second, it imposes a duty on the Government to bring forward proposals to deal with the situation of EU citizens who are lawfully in the UK. As a symbolic gesture one can see why the Lords want to keep this topic high up the Government’s agenda but one can have some sympathy for Prime Minister May on this point. She has tried to talk about this topic with the EU and been rebuffed.
Given the unusual sight of a Prime Minister taking time out of her busy schedule to keep a watchful on the Lords’ chamber, one could be forgiven for thinking that something has gone seriously wrong. It hasn’t. The system is working as it should. We have two Houses, the role of the Upper House is to check and improve legislation, so the Lords are doing their job.
There are a number of deep ironies in this situation. A few weeks ago the Government was arguing that the Commons’ approval was not a prerequisite for Brexit. Now it is saying that the Lords should not interfere in what the Commons has done. The supposedly government packed and lazy Lords have horrified the government by being active and disagreeing with the government. The unelected Lords, a system which any government could have changed in the last 20 years, are castigated for a lack of democratic legitimacy , by a Conservative government, yet if the Lords were elected the scene would be set for a massive constitutional struggle.
As it is, the Bill will go back to the Commons and almost certainly changed back. The Lords will then have to decide whether they accept this (most likely) or want to change it again (least likely) in which case the Government can simply use the Parliament Act to get the bill through. The Constitutional logic of this is straightforward enough- the Commons is elected and its job is to represent the publics. If the Commons passes unpopular legislation its members will all be up for re-election soon enough and the public can express its views at the ballot box.
Still to come in the Lords is the vexed question of whether Parliament should be able to veto withdrawal from the EU if the Article 50 negotiations are unfavourable to the UK. As has been said before, the triggering of Article 50 is an irrevocable act so by all means let us have whatever new Treaty is made brought before Parliament but parliamentarians will be faced with Hobson’s choice.
Having spoken about having some sympathy for Prime Minister May it is worth noting that the triggering of Article 50 does not have to happen at the end of March 2017- the deadline is a self-imposed one. The Government is under time pressure because it wasted the autumn fighting a court case when it could have been arguing its case in Parliament.
Within the UK all is not well: in Scotland another independence referendum is on the cards. In Northern Ireland there will have to be a new administration-provided that all sides are prepared to carry on making devolution work. In the Republic of Ireland, Enda Kenny (the Irish PM) is almost certainly on the way out due to a corruption scandal which may well result in a change of Government. At present the Republic seems to undecided as to whether it wants to keep the invisible border or to see proper border checks being reinstated to save the Irish public (and the rest of the EU) from hormone injected beef which may make its appearance here following a free trade deal with the USA.
Lastly, both Germany and France have elections coming up so it would suit the EU if the triggering of Article 50 were delayed, all contrary protestations should be viewed with a suitable scepticism. The EU itself is having something of an existential crisis and is asking itself what it should be doing. This is what Juncker has been working on.
The next significant stop in our constitutional journey will see us back in the Commons. In the meantime people here and across the continent have to live with uncertainty concerning their working and family arrangements- a human issue which is still capable of a humane resolution. Here’s hoping.