The House of Lords has voted for an amendment to the Brexit Bill which, if it remains in the Bill to royal assent stage, will require the approval of both houses of Parliament to whatever the final deal is (or is not). Tabloid newspapers, and the sillier politicians who favour leave, will rant for the next day or two about unelected peers thwarting the will of the people. Then we will all calm down as the Commons reject the amendment and the Lords, other than the Lib Dems, reluctantly give way to the elected House.
A storm in a tea cup. But is there trouble ahead?
I was unable to watch the debate at Report Stage. But I followed it at Committee Stage and I doubt anyone said anything new today (their present Lordships, whichever side they are on, are mostly drearily predictable). The amendment was proposed by Lord Pannick QC. It was a messy amendment. It clearly has to be removed by the Commons, and it will be. It is obviously unnecessary because the government has already promised votes in both Houses before any agreement is signed off. The intention behind the amendment is to give the House of Lords the opportunity of reversing the referendum result. That is a perfectly reasonable ambition for Lord Pannick and the other peers to have (though it is not one I share). They feel very strongly that the voters were enormously stupid to vote for leave. They are absolutely convinced that they, the peers, are all phenomenally intelligent (why else would Tony Blair, Gordon Brown, David Cameron and Nick Clegg have appointed them?). It is their duty, they know, to do all they can to save the British people from their own stupidity. But they won’t get their way.
So far so good. But I wonder whether the government was right not to propose its own amendment. The debates have mostly been ill informed and boring. But one crossbencher, Lord Hope of Craighead, kept raising an important point which I don’t think the government has ever answered. Lord Hope is a retired law lord and former deputy president of the Supreme Court. His opinion on matters legal deserves great respect. He kept telling their Lordships (though most of them were too stupid to understand his point) that there is a great risk that the courts may declare that the government has no power to ratify any withdrawal treaty because an Act of Parliament may be required. He could be wrong. It certainly doesn’t follow, because the majority of the Supreme Court said Article 50 could only be triggered by an Act of Parliament, that an Act will also be needed to ratify the final agreement. But the point is plainly arguable. The chances of Gina Miller deciding not to seek a judicial review of the government’s ratification of the withdrawal treaty are, I would have thought, almost non-existent.
If the present Bill had a clause (not Pannick’s anti-Brexit clause) which provided that the government could ratify a withdrawal treaty after the votes in both Houses which have already been promised, Ms Miller would be deprived of her argument and we would all be saved months of uncertainty as the courts decided whether they could overrule the government and Parliament.
Lord Hope tried to persuade Lord Pannick to word his amendment in such a way as to adopt the government’s promise of votes in both Houses and to give the government the power, after those votes, to ratify the withdrawal treaty. But Pannick would have none of that. He wasn’t trying to make the government’s job easy. His aim was to prevent us from leaving the EU.
But the government could have proposed its own amendment. I fear that its decision not to do so may come back to haunt it. Of course, it may be that its legal advisers are certain that Lord Hope is wrong. If so, they are very brave. But, anyway, our clean exit from the EU could well be significantly hindered just by Ms Miller bringing her case, even if it eventually fails. Would it not have been safer to include a provision in the Bill empowering the government to ratify the final agreement?