The House of Lords and the Article 50 Bill: Why is it a good example of the Parliament Acts and the constitutional limits of the House of Lords?

The House of Commons has primacy over the House of Lords in the UK.

In the UK the House of Commons has primacy over the House of Lords. There are a number of reasons for this, including conventions, democratic legitimacy and statute laws. The most important statutes that enforce the supremacy of the Commons are the Parliament Acts of 1911 and 1949. The significance of these acts was shown as the Article 50 Bill was going through Parliament in 2017. So what are the Parliament Acts and how can the Article 50 bill be used as an example of their significance?

What are the Parliament Acts and what did they do?

The Parliament Act (1911) was passed in response to the crisis over the People’s Budget in 1909/10 which caused a huge constitutional crisis. The Parliament Act that was passed in 1911 limited the power of the House of Lords by removing its ability to veto legislation that has been passed by the House of Commons:

Restriction of the powers of the House of Lords as to Bills other than Money Bills.

(1) If any Public Bill (other than a Money Bill or a Bill containing any provision to extend the maximum duration of Parliament beyond five years) is passed by the House of Commons [F1in two successive sessions] (whether of the same Parliament or not), and, having been sent up to the House of Lords at least one month before the end of the session, is rejected by the House of Lords in each of those sessions, that Bill shall, on its rejection [F1for the second time] by the House of Lords, unless the House of Commons direct to the contrary, be presented to His Majesty and become an Act of Parliament on the Royal Assent being signified thereto, notwithstanding that the House of Lords have not consented to the Bill: Provided that this provision shall not take effect unless [F1one year has elapsed] between the date of the second reading in the first of those sessions of the Bill in the House of Commons and the date on which it passes the House of Commons [F1in the second of these sessions.]

This meant that if the House of Commons passed the same bill for three consecutive parliamentary sessions, but the House of Lords has rejected it, the House of Commons could insist that the legislative process in the House of Lords is skipped over.

The Parliament Act (1949) limited the powers of the House of Lords further, reducing the delaying power of the House of Lords to one year (two parliamentary sessions) rather than two years (three parliamentary sessions).

The Parliament Acts have been rarely used:

1911 Act – Government of Ireland Act (1914), Church of Wales Act (1914), Parliament Act (1949).

The Hunting Act (2004) was the last time the Parliament Act was invoked.

1949 Act – War Crimes Act (1991), European Parliamentary Elections Act (1999), Sexual Offences (Amendment) Act (2000), Hunting Act (2004).

However, the fact it is rarely used does not mean it is unimportant. The very fact that it exists impacts the way the House of Lords behaves and whether or not it will stand up to the government.

What is Article 50?

Article 50 is the mechanism under the Treaty on the European Union through which a member state signifies that they are leaving the organisation. Article 50 states:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2.A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3.The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

This meant that following the Brexit Referendum vote on the 23rd June 2016, Britain had to submit an Article 50 letter in order to set the Brexit clock to countdown.

Why did Parliament have to legislate on Article 50?

Theresa May believed she could trigger Article 50 without consulting Parliament.

The Government of Theresa May originally believed that Article 50 did not have to be legislated for by Parliament and could instead be enacted unilaterally by the Prime Minister as one of her royal prerogative powers. However, this was challenged by Gina Miller (amongst others) who applied for a judicial review of the issue. This case went to both the High Court and Supreme Court. The Supreme Court ruled that:

“The principle of Parliamentary sovereignty which is, as explained above, fundamental to the United Kingdom’s constitutional arrangements, and EU law can only enjoy a status in domestic law which that principle allows. It will therefore have that status only for as long as the 1972 Act continues to apply, and that, of course, can only be a matter for Parliament.”

As such, a bill had to be bought to Parliament in order to trigger Article 50.

How did the Bill Progress through the House of Commons?

The European Union (Notification of Withdrawal) Bill was introduced into the House of Commons on the 26th of January 2017, just three days after the Miller ruling. Despite its importance, it was a very straightforward bill, with its substantive section being just a single page of A4:

At the bill’s Second Reading on 1st February 2018 the bill passed by 498 to 114. Of the 114 votes against, there was only one Conservative MP – Kennth Clarke. Clarke, the Father of House, was a long-standing europhile. He explained why he was voting against Article 50:

Labour Leader Jeremy Corbyn ordered a three-line whip for his MPs to vote for the bill, however, 47 Labour MPs defied this.

A program motion then followed that was passed by 498 to 112. This committed the bill to a Committee of the Whole House (this is the norm in the House of Lords but is unusual in the Commons). Following this, the Report Stage and Third Reading took place on the same day – 8th February. At Third Reading the bill passed by 494 to 122, again with Kenneth Clarke as the only Conservative voting against but with the Labour rebels rising to 52. The bill then passed to the House of Lords.

What amendments did the House of Lords make?

The bill began its Second Reading on the 20th of February, and this lasted for two days. In a remarkable scene the Prime Minister, Theresa May, sat at the feet of the throne in the House of Lords. This is right that exists for Privy Councillors (but is almost never used) and was clearly designed to send a message to the Lords that the elected Commons was closely watching them:

The bill was nodded through at Second Reading (passed with no vote) and went, as usual in the Lords, to a Committee of the Whole House. This would last between 27th February and the 1st of March.

During the Committee Stage an amendment was added to the bill. This amendment would protect the residency rights of all EU Nationals living in the UK. This amendment was added by 358 to 256 (including 7 Conservative Peers voting for the amendment). The bill then went to Report Stage where another amendment was added. This amendment called for a meaningful parliamentary vote on any future deal reached with the European Union. This amendment passed by 366 to 268. The bill passed Third Reading without a vote and then returned to the House of Commons.

Why did the House of Lords back down to the House of Commons?

The bill then returned to the House of Commons for the Consideration of Amendments stage. This is where the amendments bought about by the other house are considered and voted on. Following this, the bill must go back to the other House. This can lead to what is called ‘parliamentary ping-pong’ as the bill goes back and forth between both houses until they can reach an agreement.

David Davis was the Brexit Secretary who would later resign citing collective responsibility.

When the bill went back to the House of Commons the Brexit Secretary, David Davis, said that the government would not accept either amendment. When a division was held, the first amendment was defeated by 335 to 287 and the second by 331 to 286. The original bill agreed by the Commons was therefore sent back to the Lords.

Here the Lords had a choice to make. They could hold steadfastly to their amendments and again voted against the Commons, or they could back down. Speaking on the first amendment on the rights of EU nationals, Lord Bridges of the Government said:

My Lords, now we are past the 70th hour of parliamentary debate on these 170 words, I begin by saying this. The United Kingdom’s withdrawal from the European Union is obviously one of the most momentous steps that our nation will take in our lifetimes. I believe that significant opportunities lie before us but, as someone who voted to remain, I am not deaf to people’s concerns and I do not dismiss them as somehow portraying a lack of patriotism. However, that decision to leave the European Union has been made, and this very simple Bill delivers on that decision.

However, Lord Oates, of the Liberal Democrats, again pushed the amendment saying:

It is clear that, if we do not insist on our amendment, there is a real possibility that EU citizens in the UK and UK citizens in the EU may not have clarity as to their status for another two years. The House of Commons Exiting the EU Committee rightly described such a situation as unconscionable. I understand the nervousness of some noble Lords about challenging the elected House on this matter, but to those who argue that it is not the right time for us to insist on our amendment, that this Bill is the wrong place for us to insist or that precedent tells us that we should not insist, I respectfully argue the contrary. 

The debate raged, but many Lords seemed to recognise, whether they believed in the amendment or not, that they now had a duty to surrender to the elected House:

Yes, we agree on the fundamentals of the issue, but this is a constitutional matter. What is the point of prolonging a time-sensitive Bill, on which the fortunes of so many ultimately depend, merely to have the satisfaction of being soundly beaten in the Lobbies? – Lord Cormack (Conservative)

On behalf not so much of this side of the Chamber as of the 3 million people who are looking to us for some help, the Government’s position is a matter or enormous regret to me. I do not think that it is correct; I do not think that it is moral or ethical; I do not even think that it is clever negotiations. – Baroness Hayter (Labour)

The time has come for us to decide. If we want a quick resolution for the EU citizens who live in this country, I will find it difficult to continue further delaying the triggering of the article. It should be done as quickly as possible. – The Archbishop of York (Lords Spiritual)

My Lords, there has been a great deal of weeping and gnashing of gums on these issues in recent weeks and months. I do not like the government policy on this either. It appears to be: if we cannot help everyone, we will not help anyone. Nevertheless, we have asked the other place to think again. They have thought again and have not taken our advice, and our role now, I believe, is not to insist. – Lord Cromwell (Crossbench)

Even Lord Pannick who moved the amendment said the Lords should back down.

A division was therefore held and the Lords voted against insisting on the amendment by 274 to 135 votes. A debate was then held on the second amendment which called for a parliamentary vote on any future deal with the European Union. In this case, even the Lord who moved the amendment at the Report Stage said the Lords should now back down:

We won the vote last week because we won the argument. That is why the amendment was carried by a majority of 98, with the largest number of noble Lords voting, so I understand, in any vote since 1831.

However, it is now time for this House to give way to the House of Commons on this matter. Earlier this evening the Government had a majority of 45 in the Commons. There is no reason whatsoever to think that if this House were to stand its ground, the Commons would change its view later this evening. I have to say to the noble Baroness that for the Liberal Democrats to press this matter is in parliamentary terms—I say nothing about any other consideration—a completely pointless gesture, and I for my part cannot support it. – Lord Pannick (Crossbencher)

On a division on the second amendment, the Lords agreed to remove the amendment by 274 to 118. The bill was therefore agreed by both houses and on the 16th March 2017 was granted Royal Assent, therefore becoming an Act of Parliament.

Why is this a good example of the Parliament Acts in action?

The House of Lords could have insisted on their two amendments which many Lords supported in principle. Had they done so, the bill would have again gone back to the House of Commons. Had they continued to insist, they could have even delayed the bill entirely and forced the House of Commons to invoke the Parliament Act for only the fifth time since 1949.

However, the Lords recognises its constitutional position. It recognises its role as an amending chamber, but one that ultimately does not have democratic legitimacy and must surrender to the House of Commons in any showdown over a constitutional issue. In this case, not doing so would have seen the House of Lords delay the will of 17.4 million voters – a position it simply could not afford to put itself in.

Whilst the Parliament Acts have only been used seven times since 1911, this does not mean they are not important. The very fact of their existence has led the House of Lords to accept the legislative supremacy of the House of Commons.

Article Summary

The Parliament Act allows for the House of Commons to override the will of the House of Commons when they feel it is necessary. However, it is rarely used, being invoked only four times since 1949. Yet, the very existence of the Act means the Lords are likely to back down to the government. In the case of the Article 50 bill, it would simply have been unfathomable for the Lords to defy the elected Commons – and so it quickly backed down.

Key Terms

Parliament Act (1911) – A significant statute law that removed the power of the House of Lords to block a bill and instead only allowed it to delay a bill for two years. It also stipulated that a General Election had to be held every five

Parliament Act (1949) – An Act that reduced the delaying powers of the House of Lords to one year.

People’s Budget – A constitutional crisis between 1909 and 1910 when the House of Lords refused to pass the Budget of the Liberal Government.

Article 50 – The Article of the Lisbon Treaty that allows a country to give notice that it seeks to withdraw from the European Union.

Miller vs Prime Minister – A Supreme Court case in which Gina Miller challenged the right of Boris Johnson to advise the Queen to prorogue Parliament in August 2019. The Supreme Court ruled that the prorogation had been unlawful.

European Union (Notification of Withdrawal) Act – The Act of the British Parliament that allowed the Prime Minister to send Britain’s Article 50 notice to the European that Britain would be leaving the European Union.

Second Reading – The second stage of the legislative process. At this stage a Minister outlines the principles of the bill, and a debate and vote follows.

Third Reading – The final stage of the legislative process within each individual house. It is the Third Reading that a bill must pass in order to be passed to the other House or in order to go on to receive Royal Assent.

Committee Stage – The third stage of the legislative process. The bill goes to a Public Bill committee which scrutinises the bill and adds amendments before sending it back to the House. In the Lords this takes place as a Committee of the Whole House.

Committee of the Whole House – When the whole chamber sits in on a Committee Stage of a bill. This always happens in the House of Lords but only very occasionally in the House of Commons.

Three-Line Whip – The process whereby whips indicate that their MPs must attend and vote as instructed. It is so-called because Whips underline an item on the agenda three times.

Consideration of Amendments Stage – The stage whereby the two houses of Parliament consider any amendments made to a bill by the other.

Parliamentary Ping-Pong – The process whereby a bill goes back and forth between the House of Commons and House of Lords until they can agree on the bill.

Leave a Reply