Ping! went the European Union (Notification of Withdrawal) Bill from the House of Commons to the House of Lords. Pong! went the same Bill, amended, from the House of Lords to the House of Commons. Ping! it came back smartly, and angrily, from the House of Commons to the House of Lords, since the peers were not supposed to amend it and Theresa May herself sat on the steps of the throne to tell them so.
There was never any doubt that the Commons would win. It is the Elected Chamber. In any case, it passed a law in 1911 saying it must always win. The only question was how quickly. Would the Lords have the temerity to pong! this unlovely scrap of legislation (it is hardly longer than its title) back to the lower house a second time, prolonging a battle which it could not win, and threatening Theresa May’s precious timetable for we-all-know-what? We all know now that it didn’t.
How have we come to such a pass that thousands of law-abiding Britons were praying that the Unelected Chamber would do just that? In spite of being threatened with a constitutional crisis, no less, and by the BBC, no less, if that were to happen.
I found myself uncertain what constituted a constitutional crisis, and when we last had one. I consulted Wiki, which defined it as “a situation which a legal system’s constitution or other basic principle of operation appears unable to resolve.” I didn’t find that very helpful. Wiki added that it can lead to “government paralysis, collapse, or civil war.”
There have been, says Wiki, six such crises in these islands. The earliest was the tussle between King John and the barons which resulted in Magna Carta. Later there was Henry V’s break with Rome. Then Charles I quarrelled with Parliament, lost his head and we got Cromwell. So far, so 1066 and All That. Afterwards came the Glorious Revolution, which in reality was a rather inglorious invasion, the Lords’ refusal to pass the People’s Budget which led to the legislation of 1911 (see above), and finally – home and dry – the Abdication crisis of 1936, which turned out to be not a bad thing, since Edward’s VIII’s attitude to Hitler was not unlike Theresa May’s to Donald Trump.
Perhaps, I thought, a constitutional crisis might not be such a bad thing now? It would give politicians something to think about, and broadcasters something to talk about, other than Brexit, and this would be a great benefit to public health. Would it make much difference to ordinary life? Probably not. The buses would go on running, in so far as they do, water would go on coming out of the taps and grubby tenners out of cashpoints. There would be interminable legal argument, pinging between this court and that, while Brexit languished on the twig and finally fell off into the long grass and was eaten by a cow. A Belgian constitutional crisis in 1990 was resolved in a particularly inspired way. It was over the King’s refusal to assent to a Bill legalising abortion. He was temporarily declared insane, the Bill was passed – quite legally – by the Council of Ministers, and he was declared sane again. There’s so much you can do with a bit of imagination.
I further thought: if there’s a constitutional problem that can’t be resolved, doesn’t that suggest that there’s something wrong with the constitution?
Perhaps there is. Could it be that the thing is nowhere to be found, since there is no written form of it? Or could it be the regrettable existence of the House of Lords itself?
It is always robustly denied that the first is a problem. The Constitution does not need to be written down, we are told: it is perfectly fit for purpose and relies on precedent. Some people are not impressed by this – they are used to seeing important things put in writing – but others enjoy it. These are people who like Old England to be quaint. It brings in tourists. Some of them think Jacob Rees Mogg is a national treasure.
The existence of the House of Lords has been a problem ever since the creation of the House of Commons. The Commons cannot forgive the Lords for its feudal origins, and from time to time threatens to abolish it. The last time was a couple of weeks ago. The relationship between the two Houses is eloquently expressed in the way they refer to each other: “Another Place.” One imagines it hissed. It is like theatre people saying “The Scottish play” instead of “Macbeth.” There are many fewer hereditary peers in the Lords than there were (92 out of an over-large total of 804), but the image of the upper house as being composed of superannuated relics who stand in the way of parliamentary democracy is still alive. You would not know from the thundering of the Daily Mail that many of them are dedicated public servants, and some are not old at all, and most of them are there because the Government of the day has put them there, usually for its own convenience.
The real reason for the hostility of the Commons to the Lords is not that it is undemocratic, it is that it works. It is supposed to speak truth to power, and it does. It is supposed to suggest improvements to legislation, and it does. It performs these tasks with efficiency, proficiency and, generally, tact, and is able to do so because its benches are filled with men and women who know what they’re talking about and do not have an axe to grind. This is a point worth considering. They are not elected, so they don’t have to worry about being re-elected. They can give their minds to the issue in front of them. The price that has to be paid for this huge advantage is, precisely, that they are not elected. Successive governments have been unable to confront this tricky situation. With supreme hypocrisy, they milk it instead. They use the Lords, and berate them.
And the Lords are inestimably useful in helping the Government – any government – smooth out its legislative drafts, which, by all accounts, are often pretty rough. In any other line of business, you would pay excruciating sums for that level of consultancy. All they have to do is send it down the corridor, and the taxpayer foots the bill. Grateful? Theresa May’s government has been snarling, uncivil and contemptuous towards “Another Place.” It was nervous, of course. It needed to hurry Article 50 through before the nascent opposition to Brexit put on more substance. It thought the Lords might get in its way. The tragedy is that the Lords might have done.
If this were a more honest country, we would admit that we have a crisis already. What else can you call it, when half the electorate is bitterly opposed to the views of the other half, when elected representatives of the people are lying in their souls because they are afraid their constituents will vote them out if they follow their consciences, and when the House of Commons is allowing itself to be driven like a flock of sheep in a direction it knows to be disastrous in obedience to an ideology it does not believe in, while condemning an upper House for trying to do what it does believe in on the grounds that it has not been elected and therefore has no right to do anything, whether it believes in it or not? This is by any definition a crisis, although another word would be “chaos.”
On Monday night the amendment on guaranteeing EU citizens’ rights in the UK was defeated in the Lords by 274 votes to 135. The amendment on giving Parliament a meaningful vote on Brexit was defeated 274-118. Both amendments went down largely because Labour peers had been ordered by the party leadership to abstain; 25 honourably rebelled. The Lords, in other words, did not bend the knee to a mistaken idea about where democracy resides; they were thwarted by a craven narrow-mindedness that has taken hold at the top of what should be the Opposition.
There is something wrong with our political system, but it is not in the Constitution. The Lords should have been free to hurl Theresa May’s pig-in-a-poke back down the corridor so hard it frightened the woodworm.