“I by, nor do they belong to

“I say to the British people: this will be your decision.”1 And that it was. On the morning of June 24, 2016, the world awoke to the news; Britain had voted to leave the European Union, with a, largely unexpected, majority vote of 52%.

Since David Cameron promised the British public a chance to voice their opinion on whether or not they wished to stay in the EU back in 2013, the progression of the vote, now ‘fondly’ referred to as Brexit, has been a widely unpredictable one, with new obstacles faced at every turn. Once such obstacle to consider is the House of Lords. The second chamber of the UK Parliament, and a house that “represents no one but themselves”2; an unelected body that describes itself as playing “a vital role in making and shaping laws and checking and challenging the government”3. The unelected element of this House limits the Lords’ powers, putting them at a disadvantage to the House of Commons. It is accepted that the elected Members of Parliament who reside in the Commons are subject to influences that may not affect Peers who sit in the House of Lords, or at least, not affect them to the same extent. “Although members of the House are not representative and are unelected, they are nearly all political animals.

“4 Whilst Lords have neither a constituency and voters to be influenced by, nor do they belong to a political party, a lot of Lords, life peers in this case, will often show allegiance to the party that awarded them the honour of a seat in the Lords. A historical house steeped in tradition, the Lords’ place in Parliament falls under scrutiny time and time again. Since its creation in the seventeenth century, the House has been reformed and remodelled with the ever-changing views and expectations of society. “some argue that upper houses are relics of a bygone age, others argue that in many upper houses, while being less powerful than lower houses; still have a role to play in today’s political environment.”5 The question here now lies; is the Lords in fact a relic of a bygone age, or do they still hold enough power to play a role in the Parliamentary process of law making? More specifically, how did the Lords’ apply their powers during Brexit’s Parliamentary journey? Brexit itself has been a complicated process, from David Cameron first promising a Referendum in January of 2013, to the ongoing negotiations in Brussels and debates on the Withdrawal Bill6.

Since 2013, the UK has seen the passing of The EU Referendum Act7; the Referendum itself and the results and response; a resignation of one Prime Minister and the internal election of the UK’s second ever female Prime Minister; a Supreme Court decision that created further procedural obstacles for Brexit8; a general election that lost the Conservative party the majority Government; the triggering of the infamous, Article 509; and the commencement of negotiations for Britain’s departure from the European Union, with a deadline date of Friday 29 March 2019. This paper aims not to offer up an answer as to where Brexit will end up, or what the outcome will be. It merely sets out to achieve to answer the questions of whether the Lords used their constitutional powers to block or prolong the introduction of Brexit effectively; what the role and response of the Lords was throughout Brexit; and whether, in the final stages of Brexit in Parliament, will the Lords get a vote on the final deal reached between Britain and the European Union?    1.

The Referendum  “The referendum was an exercise in democracy, in which 17.5 million people cast their vote to exit the European Union.”10This chapter will critically analyse the drafting of the Referendum Act itself, specifically focussing on the Lords proposed amendments to the Bill, the intention behind them, and the response to said amendments by Parliament. The question will be raised as to whether there was a missed opportunity, by the Lords, at this point in the Brexit process to delay, or even temporarily halt Brexit.

Following on from this, the social and political response to the outcome of the referendum will be scrutinised and the immediate impact of the UK’s vote to leave the EU analysed. 1.1.  The Bill “A Bill to make provision for the holding of a referendum in the United Kingdom and Gibraltar on whether the United Kingdom should remain a member of the European Union.”11 The Bill, made statute by obtaining Royal Assent on December 17, 2015 made its first appearance in the Commons on May 28, 2015 at its first reading. This referendum was so promised in the Conservative Manifesto from the general election of 2015.

12 The Bill, therefore, due to the Conservative party gaining a majority government, became protected under the Salisbury Convention; a constitutional convention dictating that the House of Lords may not oppose or throw out the second or third reading of any Bill regarding promises made in a party’s election manifesto.13 With the main objective for the Bill being the opportunity to offer the British public a democratic vote on whether or not they continue their membership within the European Union; a lot of the leading debates surrounding the drafting process centred around the wording of the final question that would appear on the ballot paper. The originally proposed question read as follows “Should the United Kingdom remain a member of the European Union?”14. A simple ‘yes’ or ‘no’ option would appear on the ballot, and the question was to be translated for all territories taking part in the vote. The Electoral Commission, having conducted research into the potential public response to the wording of the question, here raised the point that the fact the question contained the word ‘remain’ and not ‘leave’ could reduce the intended neutrality of the question being asked.15 The Lords mostly seemed to agree that the proposed question in the draft Bill was inadequate, some stating “the question proposed in Clause 1(4) of the Bill is inappropriate, confusing, and potentially misleading.”16 When discussing this in relation to the Electoral Commission, the findings were privy to scrutiny under some of the Lords for drawing quantitative conclusions from qualitative research.

17 After much discussion and consideration, Parliament agreed upon the final wording of the question, “Should the United Kingdom remain a member of the European Union or leave the European Union?”18 to be translated appropriately, and offering the option of ‘leave’ or ‘remain’ on the ballot paper. 1.2. The Amendments After establishing how the question that appears on the ballot paper was to be worded, extensive amendments were broached and discussed during the drafting of the Bill.

Four main suggestions surround the Referendum Bill; “to apply ‘purdah’ restrictions on the civil service during the campaign; to extend the voting age to include 16 and 17 year olds; to extend the franchise to include all resident EU citizens in the UK; and that the date chosen for the referendum should not be the same day as other elections.”19 Extending the right to vote down to those of the ages 16 and above upon the date of the Referendum became a delicate subject to debate, complicated further by the fact the Scottish Parliament had allowed all those aged 16 and above to vote in the Scottish Independence Referendum. Although it was mentioned that those aged 16 have the right to marry and to join the army, this was rebutted with the fact both of these actions require a parents’ permission.20 By requiring a parents’ permission to vote, this could open up the possibility of increased parental influence and a lack of a private vote. Amid other reservations, Lord Faulks presented the argument that by lowering the age of the vote, the Government would be “engineering” the outcome of the referendum.

21 The discussion of lowering the voting age to 16 has already been open for discussion prior to the suggested amendment made to the Referendum Bill. Arguments for lowering the voting age included the fact that, at 16 you have the right to work and pay taxes, therefore should you not have a say in how those taxes are spent; by lowering the voting age, people are more likely to vote as groups and therefore increase the turn out for the younger generations; and the fact school children themselves believed they should be able to vote, by being trusted with making decisions that will severely impact their adult lives, does this not, in effect, encourage the fact they are mature and have the ability to make important and informed decisions.22 Rebutting that, however, is the fact they are “school children” and should be allowed to enjoy being children without the world of politics spilling over into their adolescence; whilst although a 16-year-old can join the army and get married – with parental permission – they still cannot smoke or drink, the Lords pointed out it would be an absurdity for an individual of 16 to be able to vote but not be able to purchase alcohol or tobacco.23Overall, the Lords sealed the fate of adolescents over the country after voting against the amendment to the EU Referendum Bill by a vote of 263 votes to 246, a mere 17 votes difference. Points I still need to make in this chapter: 1.    ‘Purdah’24 restrictions 2.    Eu citizens in the UK 3.

    Date chosen for the referendum 1.3. Responding to the Unknown During the weeks and months leading up to the Referendum, most polls and research pointed to the ‘Remain’ party winning, with the chance of a leave vote being predicted somewhere around the 25% mark.25 Matt Singh, a polling analyst and the only individual who correctly predicted the results of the 2015 general election, was adamant that the chance of the UK leaving the EU would be below 20%.26 Yet, the morning of June 24 2016, the results were in, counted and verified; the United Kingdom had voted to leave the European Union.

The impacts of this vote were felt throughout the world, and in the following hours, days, weeks and years, the true impact of the vote revealed itself to those of us who watched with bated breath, as the first member state of the European Union had decided to ultimately trigger their withdrawal under Article 50.27The immediate response to the UK’s decision was a violent drop in the value of the Great British Pound, this value has continued to fluctuate apparently correlatively to outcomes in the ongoing negotiations in Brussels28. The media was ablaze with articles depicting what the vote would mean “for you”, and “what happens next?”29 and the general public suddenly became very vocal with their opinions, sparking an increase in hate crimes of over 40%!30 Alongside all this, the Prime Minister, David Cameron, announced he would step down due to his failure in the referendum, and that a new Prime Minister would need to be elected by September. Lord Bridges, the Parliamentary Under-Secretary of State, Department for Exiting the European Union announced to the House of Lords that “We do not see Brexit as ending our relationship with the EU; it is about starting a new one that is dynamic and constructive.”31 A statement that is bold, yet emphasis the Lords overall response to how Brexit will hopefully conclude. 1.4.

A Missed Opportunity? Did the Lords miss their biggest opportunity to stop Brexit in its tracks? Or was it a calculated response to protect the Lords position in Parliament? An attempt to block a Bill such as this could call into question the Lords credentials as law makers, and whether the House should still hold a place in modern Parliament and the legislative procedure. However, the recent proposed House of Lords Reform32 the House itself has suggested a reduction of peers from 800 to 600. With the Conservative Party being adamant that a House of Lords reform is not a priority,33 the opportunity for the Lords to undermine the Commons arises more often, leading the Commons to agree with the fact that the Lords is indeed in need of a reform. The overwhelming view of the House, and the public, in regards to the Lords blocking Brexit however, is that of Lord Forsyth, “I do not think that as an unelected Peer I have the right to prevent the House of Commons delivering to the British people the opportunity to have their say in a referendum.”34 First and foremost the Government runs the country on behalf of the people, it would be political suicide for any house to attempt to block the force that is “Brexit”. 1 David Cameron, ‘EU Speech at Bloomberg’ (23 January 2013)

uk/government/speeches/eu-speech-at-bloomberg>2 Rogers, R. and Walters, R, How Parliament Works. (Routledge, 2015) p. 323 Parliament. House of Lords, Briefing Paper. Role and Work: Making better legislation.

Checking and challenging the government. Experience and knowledge. (2011)4 Rogers R, and Walters, R, How Parliament Works.

(Routledge, 2015) p. 365 Robert Connor, ‘House of Lords: Relevant or Relic? An Analysis of the Political Relevance of Legislature Upper Houses’ (2013) The Review: A Journal of Undergraduate Student Research, 4(5) p. 126 European Union (Withdrawal) Bill 2017-19, hereby referred to as ‘The Withdrawal Bill’7 European Union Referendum Act 2015, hereby referred to as ‘The Referendum Act’ 8 R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union 2016 EWHC 2768, 2017 UKSC 59 Article 50 Treaty for the Functioning of the European Union 201210 Lord Keen of Elie. HL Debate 18 July 2016, Vol 774, Col 43311 European Union Referendum Act 2015 12 “We will then put these changes to the British people in a straight in-out referendum on our membership of the European Union by the end of 2017”- Conservative Manifesto 2015, p.3013Glenn Dymond, Hugo Deadman.

“The Salisbury Convention” (2006) House of Lords Library 14 European Union Referendum Bill, 28 May 2015, HC Bill 2 of 2015–16, clause 1 (4)15 Electoral Commission, Referendum on Membership of the European Union: Assessment of the Electoral Commission on the Proposed Referendum Question, September 2015, p 17.

16 Lord Armstrong of Ilminster (CB), HL Debate, 24 January 2014, Volume 761, Col. 85317 HL Debate, 24 January 2014, Volume 761, Cols 853-18 European Referendum Act 2015 s1(4) 19 Edward Scott, ‘The European Referendum Bill (HL Bill 60 of 2015-16)’ (2015) House of Lords Library, LLN 2015/03320 Lords Chamber Debate, 1 June 2015, Vol. 762, Cols 156-15921 Lords Chamber Debate, 1 June 2015, Vol. 762, Cols 156-15922 Lords Chamber Debate, 25 October 2013, Vol. 748, Cols 1275-129623 Lords Chamber Debate, 25 October 2013, Vol. 748, Cols 1275-129624 Here meaning ‘pre-referendum’ restrictions25 EU Referendum Poll Tracker and Changes

ncpolitics.uk/uk-eu-referendum/>26 There is less than a 20% chance of a Brexit — says the only person who was right about the UK General Election (http://uk.businessinsider.

com/ncp-research-shows-196-chance-of-a-brexit-2016-5)27 Treaty for the Functioning of the European Union28Brexit Battered Pound as Volatile as Emerging Market Currencies (Bloomberg Market, 2017) 29

uk/news/uk/politics/brexit-eu-referendum-what-happens-now-immigration-economy-recession-holidays-a7097881.html>30 Aoife O’Neill, ‘Hate Crime in England and Wales, 2016/17′(2017) Home Office, Statistical Bulletin 17/17 p.6 31 Lords Chamber Debate, 3 November 2016, Vol 776, Cols 76132 Richard Kelly.

House of Lords, Briefing Paper. House of Lords Reform in the 2017 Parliament. (2017)33 Conservative Party Manifesto, 201734 Lord Forsyth of Drumlean, HL Debate, 24 January 2014, Vol 761, Cols 862-863


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