The Lords is in a bad place – metaphorically, anyway. The whittling-down of the hereditary peers under Tony Blair was meant to give the chamber greater legitimacy. However, its effect has been to remind voters that its membership is now largely shaped by executive fiat. Many of them doubtless see this simply as one lot of politicians appointing another lot. This is not a reliable basis for public support. It will not have been buttressed by David Cameron’s misuse of patronage in making too many appointments in his final list.
Furthermore, the Upper House is too big – second only to the Chinese People’s Congress, it is claimed, in size among chambers throughout the world. As individuals, lots of peers acknowledge this. But as a collective, the house seems incapable of getting to grips with the problem.
The consensus in the Commons is for reform to come in the form of part or a wholly elected Lords. This view found expression in the Coalition Agreement’s declaration that “appointments will be made with the objective of creating a second chamber that is reflective of the share of the vote secured by the political parties in the last general election”. This has simply stoked up further problems: if the principle is to apply, the Liberal Democrats are now grossly over-represented in it.
All this is necessary background to the progress of the EU Withdrawal Bill in the Lords. It has now reached report stage – the point at which, in a certain sense, debate gets serious, because votes are taken. This gives the Upper House the chance to demonstrate its main strength, but also risks exposing its greatest weakness.
Its greatest strength is that there are more experts in the Lords than the Commons – a plus when it comes to considering legislation that the lower house has left unconsidered, as is far too frequently the case. In this sense, the Upper House is now fulfilling an essential parliamentary function. There can be objection at all in a revising chamber, as it is, frequently asking MPs to think again. The rate at which it does so has bobbed around. It gave Cameron’s majority government a hard time – as it did to Tony Blair’s in 2005-6.
So, for example, peers are absolutely entitled to put the so-called “Henry VIII” powers in the Bill under a magnifying glass. Some of these are inevitable if government of any coherence is to continue post-Brexit. But the Lords will be right to seek to minimise these. However, there is an obvious difference between seeking to improve the Bill and trying to frustrate it.
In an age of mass revolt in the western world against elites and ascendancies – the world of Trump, Orban, and an AfD opposition in Germany – nothing could be more risky for the Upper House’s future than for its unelected members to seek to defy the country’s biggest-ever popular mandate for a measure: namely, the referendum verdict on Brexit. So while it would be within its rights to make a point about the Customs Union, to pick a topical example, it would not be dig in over it.
Such action would remind voters of its greatest weakness: a growing problem with legitimacy. Those who have religion over Britain’s EU membership – the former Commissioners and Ambassadors whose sense of self-identity is all bound up with the European project – simply won’t care. Nor will most Liberal Democrat peers, secure in the knowledge that even a cut in their numbers would see those ejected securely pensioned off – presumably with their titles intact.
Crossbench votes are always crucial in the Lords as it now is. But the decisive role in the Bill’s consideration may well be played by Labour. The party’s leadership is next to useless as a functioning Commons Opposition – as we have seen with its bungling this week of Syria votes; as we are seeing over the Windrush scandal, where a half-decent Labour Party would now be making ways by using the Commons chamber to help gain an inquiry.
Its leadership in the Lords now has a chance to do better – drawing a fine balance between improving the Bill, defeating the Government, and allowing Brexit to proceed. After all, the last is the people’s verdict. And Labour likes to think of itself as the party of the people, does it not? The leader of the Labour Party was excoriated by his own party’s backbenchers in the Commons over anti-semitism. The Withdrawal Bill presents its leader in the Lords, Angela Smith, with an opportunity to do whole lot better.