When Theresa May called her ill-fated general election in April last year, she justified the move with the argument that her small majority was not sufficient to push through the Brexit that the British people had voted for. She claimed the Conservatives’ small majority meant that opposition parties, the unelected House of Lords and, albeit only by implication, rebel MPs from her own party could stymie her plans.
Her argument was dismissed as an excuse to deliver her the thumping and triumphant personal mandate which the polls then suggested she would receive.
Things, as we now know, turned out rather differently, but the Prime Minister – wittingly or not – may have been right about the need for a majority to secure Brexit. And if she was correct before the vote that lost the Conservatives their majority, her point is even more pertinent now.
The key piece of Brexit legislation – the European Union (Withdrawal) Bill – made its way through the Commons largely unscathed. The Government did lose one vote – on Dominic Grieve’s amendment mandating that another statute would have to be passed approving the final terms of withdrawal – and had to make a few other concessions to avoid further defeats. These were changes ministers could easily live with.
In the upper house the story has been rather different. The overwhelming Remainer majority in the Lords kept their powder dry during the bill’s languorous committee stage – no amendments were pushed to the vote then – but they have certainly made their weight felt during report stage.
In the first five of the six days of report (there is a final day of it still to come on Tuesday May 8) the Government has been defeated ten times and won just two divisions. By far the most important of the two was on holding a second referendum, and only then because Labour peers were whipped to abstain on those amendments.
The Government of course has nothing like a majority in the Lords; only 244 of 782 peers – less than a third – take the Conservative whip. They can rely on the support of some of the Lords’s 182 crossbenchers, but many more of them are against Brexit than for it.
Even on the Conservative benches there are many ardent Europhiles, indeed amongst them are people – Michael Heseltine, John Gummer (now Lord Deben), and former European Union Commissioners Chris Patten and Christopher Tugendhat – who are probably the most ardent European integrationists left around in British politics.
The votes were different on each division but up to 24 Tories voted against their own side. This cannot be blamed on a bad whipping operation. The whips have persuaded peers whose every inclination would be to water down Brexit to vote with them and not rebel – people such as Charlotte Vere and Stephen Gilbert, leading staff of the Remain campaign during the Referendum and pro-Remain Times columnist Danny Finkelstein.
If the long-mooted list of 20 new peers that May had supposedly been about to announce had materialised, it wouldn’t have made much difference; the defeats have been too large.
What happens now? Ministers may choose to live with some of these amendments. But others are incompatible with delivering the Brexit that it has promised and is working towards. They include: Amendment 1, which makes the passing of the legislation conditional on the Government seeking to “negotiate a customs union as part of the framework for a future UK-EU relationship”; Amendment 49, which creates a mechanism for the Government to be forced by Parliament to renegotiate its withdrawal agreement under a set of circumstances; and Amendment 51, which means the Government would need to get parliamentary approval for its negotiating stance.
The European Union (Withdrawal) Bill has its Third Reading in the Lords on May 16 and will then return to the Commons to consider the Lords amendments. The Government has control over the timetable of the Commons so can delay when these amendments go back to the floor of the House.
This is the tactic Theresa May has repeatedly employed in the hope that somehow a rabbit can be pulled out of a hat at a later point. Her ability to delay matters are, however, limited by the fact that the legislation needs to be passed well before the Withdrawal date on March 31 2019. In short, time is running out.
The Lords rebellions have emboldened the Tory Europhiles in the Commons and the whips believe that up to 20 Tory MPs will rebel when they are asked to overturn the Lords amendments. The Government, with the DUP’s support, has 326 votes and the opposition (without Sinn Fein who are abstentionist and hence irrelevant) have 313 votes. A few Labour Eurosceptics should vote with the Conservatives – certainly Frank Field, Kate Hoey and Graham Stringer – and there may be a few more, such as Caroline Flint, who abstain.
But other Eurosceptic Labour MPs will not vote with the Tories if they have a chance to defeat them. Dennis Skinner for example – a lifelong opponent of European integration – will swallow his scruples if there is any chance of defeating the enemy. So in an ordinary vote on these amendments, a Commons defeat looms for May.
The Tory whips believe that the only way they can get the Commons to overturn the Lords amendments is to turn the votes into a confidence issue for the Government. It is their belief that under those circumstances no Conservatives would rebel and that they could then still rely on the votes of a few Labour MPs.
This is, however, an extremely risky strategy and is complicated by the Fixed Term Parliaments Act, which means that the only thing that would cause the Government to fall is losing an explicit vote of confidence.
That means Tory Europhiles could rebel on the Lords amendments and then – regardless of what the Government says the implications of this are – troop through the Government lobbies the next day when a confidence vote is called.
The whips could of course threaten to withdraw the whip from such MPs – but this alone would not bring down the Government. Whether the Europhile Tory MPs are willing to play such a high risk game remains to be seen. It is clear that some Tory peers, most explicitly Michael Heseltine, would be willing to risk a Corbyn administration to derail Brexit. Whether anyone in the Commons is of that view remains to be seen.
There has been much comment about how the Government can persuade the Lords to back down and whether threats to reform the chamber, flood it with pro-Brexit peers or even abolish the upper house would be effective.
The most obvious problem with all of this is that there is no chance of serious reform in time for the Brexit deadline of March 2019, and peers could even implement procedural changes which would slow down the arrival of new peers – for example by stipulating that only one new peer can be sworn in on each day the House sits.
If, however, the Government fails to overturn the Lords amendments in the Commons, all of this is academic. Whatever happens, the parliamentary road to Brexit remains extremely rocky.