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The role of the Lords in revising government legislation


Baroness Angela Smith speech at start of Lords 'parliamentary ping-pong' debate on the EU Withdrawal Bill

My Lords, this is the first of the Motions before us today. Before dealing with the substance I’d like to briefly reflect on the role Your Lordships House has played in consideration of this Bill and, for the avoidance of any doubt, our approach to today’s business.

Despite attracting a little more excitement, this is the same procedure as for every legislative Bill that come before YLH. I’ve said before that the process of Brexit cannot be left to those who have no doubt.  It is only through consideration and challenge that we can get better, if not the best, outcomes for any legislation.

This Bill came to us, deeply flawed and divisive. Together, we’ve approached it thoughtfully and diligently. We’ve had some long days, and nights, in Committee and on Report.  And we’re grateful to those Government ministers across departments who have been willing to engage on some of the less controversial, but extremely important issues.

Of around 200 amendments passed, there were 15 that didn’t enjoy the initial or full support of the Government. Of those, 1 was totally accepted – on agencies. Another was largely accepted, with minor changes – on Northern Ireland. 8 were rejected – although on some of these, for example enhanced protection for EU derived protections – the Government has since made further concessions or, in the case of sifting, reinstated earlier amendments. 5 have been replaced with amendments in lieu that we will consider today, including this one on the Customs Union, and also on the publication of primary legislation to enforce environmental protections.

So we’re grateful to Government for their consideration and acceptance of so many of the points raised in YLH. 

Even before the Bill returned to the Other Place significant changes were made on a range of issues which include:-

  • removing the power to levy taxes or to establish new public authorities by SI, particularly important in terms of the new environmental enforcement body
  • Additional explanatory statements and reports to Parliament
  • The introduction of sunset clauses on some issues
  • Prevention of repeal or amendment to devolution clauses by Secondary Legislation
  • Clearer guidance for courts and tribunals in relation to future decision of the CJEU

And importantly – the removal of a clause that I’d never seen before in any legislation - that is the ability of a minister to amend the Bill itself by an SI.

So, despite the disappointment of the rejection of some Lords amendments, this legislation is better for the work undertaken by YLH. We have not exceeded our defined and limited role but have used that role to provide for greater consideration, further reflection and meaningful changes. As the NL Leader of the House has said previously, and reinforced by Government ministers in the Other Place – there is no legislation that doesn’t benefit from scrutiny by the House of Lords.

I often recall the expression that I first heard from My Noble Friend, Lord Rooker.  It’s not particularly flattering for us but, when it comes to legislation, YLH is in effect a sub Committee of the House of Commons. In passing any amendment all this House can do is ask the Chamber of elected MPs to consider or reconsider an issue.

And My Lords, we understand, that in a democracy that can be both an asset, and at times a frustration to Govt. The Canadians describe their Second House as the Chamber of Sober Second thought.  A further opportunity to think things through and fine tune legislation. Which makes the outbursts of pro-Brexit MPs raging against this role all the more ridiculous.

We’ve seen a fair bit of sabre rattling from some of the most enthusiastic of Brexiteers and supporters.  While inaccurate and misleading press headlines such as ‘enemies of the people’ and ‘saboteurs’ may add excitement and drama it does nothing to improve the quality of debate or journalistic integrity. And we hear calls for this House to be abolished, to be replaced with a committee of experts or indeed an elected House. 

Many hold honourable and genuine positions on different kinds of reform. But to base a case for fundamental change and abolition of the current system because of disagreement on a particular Bill is poor judgement.  And in response to proposals for an elected House or a House of experts – can I suggest that it might not be quite so compliant at accepting the Primacy of the elected house. So our role today is very clear.  This House does not and should not engage in Ping pong lightly or without thought.  The process of Ping Pong is not to challenge the elected House, but to provide an opportunity. 

Where matters are clearly and obviously unresolved in the House of Commons that is where they should be dealt with.  The reports since Friday of the disagreement between the Government and its own MPs is not one we should seek to intervene in, other than to provide an opportunity for MPs’ consideration - this can only be resolved by those elected to the House of Commons.

The Lords amendments 1 and 2 on a customs union have been returned to this House with in effect just one amendment – changing the term Customs Union – to Arrangement. This is unnecessary but I understand why Government has done so. Understand, because Government doesn’t yet know, even today, what it wants.  Currently has two work streams: 1) Customs Partnership and 2) Maximum facilitation.

When the Dutch Government is advising its manufacturing industry not to buy car components from the UK, because our future customs relationship with the EU is unclear we know there is a problem to be addressed urgently.  As a result of our amendment the Government is now committed to returning to Parliament within just over 4 months– by end of October this year – with a written statement of what it has done and how it will proceed.

My Lords – I don’t feel this is an issue that we should return to the Other Place.


Baroness Angela Smith of Basildon is Labour Leader in the House of Lords. She tweets @LadyBasildon

Published 18th June 2018


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