The House of Lords has sent back the Article 50 bill with two amendments. The first concerns the rights of EU citizens. The second was to give parliament a “meaningful say” in any deal that might be reached. The proposed amendments can be seen here.
The first of those amendments gives the government 3 months to bring forward proposals with regard to protecting both EU and EEA citizens resident in the UK.
Interpretations have suggested that if passed, this amendment automatically guarantees those rights. In practice, any such proposals might be dismissed. There are certainly grounds for further debate on those far those rights may extend.
If the amendment is seen to be binding, then opponents may argue that the government’s hands are tied in any negotiations. Effectively, a unilateral pledge is made to the EU with no reciprocal arrangement being guaranteed to British citizens resident elsewhere among the remaining 27 countries.
In practice, Theresa May has commented in parliament that most leaders within the member states support reciprocal rights with a handful of nations holding out until Article 50 has been enacted in a statement of intent to leave the EU. Informed sources suggest that central to this stance is Frau Merkel.
Most EU states have a vested interest in British citizens continuing to live in their countries. Take, for example, Spain and France, retirement locations where local communities survive through accommodating well pensioned retirees. There are of course associated tourism benefits.
Frau Merkel faces her own elections this year. It would be a strange argument to have accepted refugees but to deport people from a rich and high growing economy that provides inward investment, not least with the trading partner that gives Germany its biggest trade surplus (Statistisches Bundesamt (Destatis), 2017).
In practice, it is highly probable that EU members will choose to reciprocate. Few political figures in the last century have sought to displace long term residents, from outside their countries. Stalin, Hitler and Idi Amin spring to mind, none of who were bound by EHCR.
There is of course a perverse situation that could theoretically arise. Should a future British government decide to erode the rights of British citizens, with the wording of the amendment, EU residents could maintain a higher level of rights in perpetuity.
The second amendment is potentially much more debilitating to negotiations. During the Lords debate, it was recognised by those on both sides that the wording is “defective”.
When launching the white paper in January this year, the government committed to inform parliament as negotiations progress. There already exists a mechanism for the ratification of treaties, namely the Constitutional Reform and Governance Act 2010. Both elements effectively make the amendment unnecessary, unless of course there is a more sinister motive.
What the amendment provides is for the approval of BOTH houses of parliament, that is to say the Commons AND the Lords. Moreover, the approval of BOTH houses is required should no deal be agreed and the decision is made to leave the EU anyway.
This is deeply flawed in many ways. It has already been argued in many spheres that the unelected Lords are granted an effective veto over any terms negotiated.
Consider for a moment who voted for this amendment. It was proposed by Lord Pannick, defender of BHS tycoon/typhoon Philip Green and supported by the Liberals, who gained 8% of the vote in 2015. Similarly, the Labour peers whose party attracted 30% of the vote, fell in line. Many of these, appointed by Tony Blair, also draw EU pensions, including the likes of Kinnock, Mandelson and Lord Harrison (former MEP) who described the majority of the referendum electorate “blind Brexiteers” and the Commonwealth a “corner shop”.
A significant handful of Conservatives also fell in with the Liberal amendment, as with some of the cross-benchers, not to mention abstentions. Among these, a significant proportion have families who derive income from the current arrangement with the EU, either in CAP payments or pensions from service in Bruxelles.
If successful in gaining the final say, what are the implications should they continue to thwart the will of the people? Perhaps we could take a clue from those Lords such as Ashdown, Pannick and Heseltine, that the ultimate goal is to maintain membership of the EU.
Scenario 1 is simple, the Lords agree with any deal that the government might negotiate, therefore no problem. With the Lords as currently constituted, the probability of this happening may be low, especially if the EU negotiators see a chink in our armour and insist on a bad deal for Britain.
Scenario 2a is therefore that the government negotiates what they perceive to be a satisfactory deal, 2b is that terms can not be agreed so that we revert to no deal and fall back on WTO rules. The Lords can veto either situation, based on current wording.
Article 50 provides the possibility of an extension to negotiations, with the proviso that all 28 nations agree. Again, there is a further range of scenarios.
Scenario A is that an extension is agreed. Scenario B is that Britain reapplies to remain a member of the EU. From a position of weakness, the terms of membership may be even worse than before. This would take us to 2020, when under the terms of the Fixed term Parliament Act, a general election will take place.
Scenario C is that if any of the 28 says no to an extension the EU is in a position to insist that Britain has to fall back on WTO rules anyway. The Lords then has a veto on an impossible decision, rendering itself totally without credibility. Luxemburg, Estonia, Latvia, Lithuania, Greece or Wallonia each has more power over our future than does Parliament.
The most likely outcome is no deal, on the basis that somewhere along the line the EU will be in parallel negotiations over budget with 27 nations. As Theresa may quite rightly says “no deal is better than a bad deal for Britain”.
The net effect of the Lords’ amendment could be to put the country in limbo, at the mercy of others. The Remainer lords will have created the uncertainty that we were told to fear during the referendum campaign. The 300 or so peers must not be allowed to win.
Ultimately, the solution would rest with the outcome of the 2020 general election. The Labour party would have to decide between the Remainer rump or to heed the will of the people. The Liberals would have to hope that the people accept EU membership on worse terms than before and prefer the wrecking amendments of their lords.
As for the Conservatives, before the referendum, the majority of the parliamentary party were ostensibly Remainers. Now, the majority ostensibly support the will of the people. They will all have to retire or face the judgement of the country based in the position they take up at the conclusion of Article 50 talks.
There are of course other possibilities. Other leaders or even parties may emerge, just as UKIP once did and Sir James Goldsmith did with the Referendum Party.
After experiencing the chaos potentially caused by this Lords amendment, constitutional reform, i.e. abolition of a totally unelected second chamber (with the exception of hereditary peers who choose between themselves) would certainly be a vote winner.
Any such alternative party would also need a coherent strategy towards EU relations, unless Luxemburg, Estonia, Lithuania, Latvia, Greece or Wallonia has already taken the matter out of our hands in 2019.
Either consciously or inadvertently, the House of Lords has created the potential for chaos and fundamentally weakened the country. MPs can oppose the amendment. With a majority of 14, it only needs 8 Conservatives to switch sides to carry it. Kenneth Clarke has already ignored one whip. The country then becomes dependent on other MPs with a conscience.
The early part of the week commencing 12th March sees the bill return to the Commons. MPs can still be lobbied. Who should prevail, the unelected House of Lords or the will of the people as expressed in a referendum? There is still time to have your say and contact your MP.