We could be heading for a colossal constitutional showdown. Earlier this week, Baroness Wheatcroft told the Times that she and other peers are hoping to muster up a Lords majority against the invocation of Article 50, even if the Commons votes in favour. This would be extremely dangerous. Confrontations on this scale can be resolved in three ways. All end badly for the remainers, the Lords and the country.
First, there’s packing. The government can fill (or at least threaten to fill) the Lords with sympathetic peers to get its legislation over the finishing line, provided the monarch agrees. The most fractious and feverish confrontation between the chambers, over the Great Reform Act 1832, was resolved this way. Earl Grey, a Whig, was determined to widen the franchise to at least some of the burgeoning middle class and do away with the ‘rotten boroughs’, constituencies so small that the choice of MP was in the hands of a bribable few.
The Conservatives, the party of Land, capital-L, wouldn’t have it – until, that is, Earl Grey persuaded King William IV to pump the House full of Whigs. Keen to hang on to their majority, the Tories relented. This would be a hopeless outcome. The last thing we need is for the Lords to get even more bloated. It is already the second-biggest chamber in the world; only China’s single house is bigger. Packing would do nothing for its reputation, nor its cost, nor its ability to scrutinise. And as a remainer, I would not like to see it clogged with Brexiteers.
Second, there’s neutering. So it was with the People’s Budget 1909. David Lloyd-George, a Liberal, wanted to introduce a graded income tax to fund pensions. The budget contained also proposals for a land tax, which would have eviscerated the Tories’ core constituency. The Lords threw it out and the government soon fought and won an election on Lords reform. The Lords’ veto was removed for good, reduced to a mere two-year delaying power. In turn, it was commuted to one year in 1949 by a Labour administration jittery about Conservative peers using their delay to render the government a lame duck in its final months.
This result would be no good either. The Lords’ powers could hardly be reduced any more without disappearing altogether. Some would probably welcome that outcome, but actually, most wouldn’t. According to recent polling, only about 32 per cent of the electorate want to see the Lords abolished; most value the expertise that its more distinguished members bring to scrutiny and policy making.
The third option, then, is for the government simply to wait it out, and let the Lords delay if they must. This has happened six times, most recently when the Lords delayed a law equalising the age of consent for gay sex in 2000. Lady Wheatcroft tells me this is her outcome of choice, anticipating another popular vote while the clock ticks. It is unlikely though. Governments do not wait around to pass big, landmark bills like this. Invoking Article 50 is, by Lady Wheatcroft’s own admission, a huge decision, even on the scale of the Great Reform Act or the People’s Budget. If history is anything to go by, the government will do whatever is necessary to bulldoze it through.
But even if May does stick to Lady Wheatcroft’s timetable, it won’t help. Perhaps the electorate will have changed its mind by this stage, in which case the Commons will be perfectly able to reflect that in its own vote and ditch Brexit without the second chamber’s help. I dearly hope this happens. But if support for Brexit is as strong as ever, the Lords block will achieve nothing but to stoke economic, political and constitutional chaos.
Remainer that I am, I find myself irresistibly attracted to the fantasy of the Lords ending the Brexit nightmare. But it is a fantasy. They will fail and commit constitutional suicide in the process. I suggested to Lady Wheatcroft that many of her fellow peers – even the remainers – might share my view. 'On an issue as important as this,' she told me, 'I like to think people will follow their consciences. That’s what the Lords is for.' If it’s not careful, it won’t be for anything much.