Election 2017: The Lords' mandate on Brexit

The House of Lords has become increasingly assertive in recent years. So, in her speech calling for a snap election, it was no surprise that Theresa May railed against the “unelected members of the House of Lords [who] have vowed to fight us every step of the way”.

With no clear majority in the current House of Lords (204 Conservative, 197 Labour, 98 Lib Dem and 143 crossbenchers), its influence on policy, particularly Brexit, is an important issue.

Can the Lords ‘challenge’ Brexit?

May’s assertion that Westminster still hadn’t accepted the referendum result ignores the important role that both chambers play in the Brexit process.

The Lords plays an important role – recognised in the Conservative manifesto – as a revising chamber that often has more time than the Commons to look at the detail of legislation and policy. There will be votes – the Great Repeal Bill, now slightly delayed, will be one source of friction. There will be bills on major topics like customs and immigration. There will also be a vote to approve the final outcome of the negotiations. Beyond that, the Lords will continue inquiries through its committees. None of these will change because of the election result.

Is Brexit a manifesto ‘commitment’?

Behind this dispute is a long-standing convention, known as the ‘Salisbury doctrine’, that the Lords can offer amendments but not wreck government bills that form part of an election manifesto. This is because the Commons has a democratic mandate and the Lords does not.

If May gets a big majority, she may have more political legitimacy in calling for critics to accept her approach. But the Conservative manifesto contains little detail about how Brexit will be achieved, so there is a question over whether or how the Salisbury convention applies. The Liberal Democrats have frequently argued that the Salisbury doctrine should be abandoned.

It would be plausible for the Lords to say that the election changes little about how they scrutinise the ongoing negotiations and vote on any bills relating to Brexit.

However, both the Greens and Liberal Democrats have a second referendum in their manifestos; Labour’s current policy accepts Brexit but wants a different approach. A Conservative majority in the Commons could allow the Government to argue the second referendum argument is dead, but in general the manifesto wording will probably not greatly change the Lords’ approach.

Will the Lords be reformed?

In their current manifesto, the Conservatives say they want the Lords to continue its important role as a “revising and scrutinising chamber”. But, as is often the case, they include the emphasis that the Lords needs to respect the primacy of the Commons. Although they want to reduce the size of the Lords (on which few disagree), the manifesto further says that “comprehensive reform is not a priority”. The unwritten emphasis is that it could become so.

Calls to reform the House of Lords have a long history. Many prime ministers have talked about it; many parliamentary inquiries have considered it. But so far, not much has been done on it.

Having a mandate from the electorate, and a sizeable majority, will strengthen any prime minister’s hand. However, as far as the House of Lords is concerned, it is not clear that much will change. The question of whether the Salisbury doctrine applies to Brexit may bring further arguments between government and the Lords (and could see the Commons invoke its supremacy over the second chamber) but it won’t stop the important scrutiny, debate and amendments that the complicated process of Brexit needs.