Does the House of Lords’ Defeat of the Brexit Bill Matter?

Prime Minister Boris Johnson has suffered his first defeat since the Conservatives won a landslide victory last month. His Brexit Bill has experienced a setback in the House of Lords after peers supported several amendments on EU citizens’ rights and the power of courts on Monday evening.

The legislation suffered three defeats at the upper chamber’s hands. The first defeat for Boris arrived when the Lords supported a cross-party amendment to the Withdrawal Agreement Bill on EU citizens’ rights, calling for those lawfully residing in the UK to be allowed physical proof of their status.

270 to 229 peers voted in favour of the amendments.

During the second defeat, the Lords voted by 241 to 205 to remove the power of ministers to choose which courts should possess the power to depart from judgments of the European Court of Justice (ECJ) and by reference to what test.

Peers then backed a move by former Conservative Lord Chancellor Lord Mackay of Clashfern to enable cases to be referred to the Supreme Court to choose whether to depart from EU case law. Voting on this amendment was 206 to 186, as the Lords advised against interference in the judiciary’s independence.

Considering the Prime Minister called a general election to ensure that he could ‘Get Brexit Done’, this defeat could be interpreted as humiliating at first. Yet it will not prevent Boris from meeting his January 31st deadline to leave the EU.

The Conservatives have no majority in the Lords, which may cause other Tory policies to get delayed during the Government’s term in office. Currently, there are 800 peers eligible to work in the upper chamber, and the Tories only have 244 of them. This means that no governing party can guarantee all of its legislation will experience a smooth passage through the Lords, which makes it easy for opposition peers to delay new laws. Liberal Democrat peers like Lord Oates were instrumental in the Government’s defeat on Monday night.

The upper chamber’s primary purpose is to debate and amend legislation. It does have the power to reject a bill, but the Parliament Act 1911 confirmed the House of Commons’ dominance over the second chamber when the Lords voted to reject the Liberal government’s 1909 People’s Budget. This broke the convention of opposing bills. The Conservatives will use this law to ensure that the Withdrawal Agreement Bill is approved by both chambers eventually.

The Lords’ powers were further stripped by the Salisbury Doctrine, which emerged during the 1945-51 Labour government when former Tory Prime Minister Lord Salisbury was leader of the opposition in the upper chamber. The Convention ensures that significant government bills can pass through the second chamber when the government of the day has no majority in the Lords. Therefore, peers cannot vote down a second or third reading of a bill mentioned in an election manifesto.

No party has had a majority in the Lords since Tony Blair passed the House of Lords Act 1999 that ended Tory dominance in the second chamber, so the Salisbury Convention has been useful for many prime ministers hoping to legislate critical manifesto promises since.

Whilst Monday’s defeat is disappointing for Boris, it does not matter. The Lords is bound by many laws and conventions to eventually approve of the Brexit Bill. The Tories’ majority will prevent a repeat of the numerous battles Theresa May faced when she tried to legislate her own Withdrawal Agreement Bill. The upper chamber is performing its role in acting as a check on government legislation, though many will undoubtedly accuse the peers of deliberately thwarting Britain’s EU exit for selfish reasons. That is debatable, but the days when many hoped they would be able to ‘stop Brexit’ are truly over.