Brexit powers row: Theresa May can’t overrule House of Lords

Prime Minister Theresa May. Picture: Jonathan Brady/PA Wire
Prime Minister Theresa May. Picture: Jonathan Brady/PA Wire
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Theresa May’s government is powerless to stop the House of Lords throwing her Brexit timetable into disarray and triggering a constitutional crisis in a dispute over devolved powers, it has been claimed.

UK ministers have been warned they face “deal or bust” as Brexit legislation moves into the House of Lords, where the government has until February to answer cross-party demands for amendments to prevent a devolution ‘power grab’, because of a decision to extend the parliamentary session to help prepare for Brexit.

At a Westminster summit between devolved parliamentarians, MPs and peers yesterday, a Holyrood delegation warned that “urgent” action is needed to avoid a constitutional clash over the EU (Withdrawal) Bill.

Bruce Crawford, the Scottish Parliament constitution committee convener, said MSPs would unanimously reject consent for the Withdrawal Bill unless agreement is reached with the Scottish Government on wholesale changes to Clause 11, which keeps 111 devolved powers returning from Brussels at Westminster.

The warning was heard by Chloe Smith, the new Minister for the Constitution. “It was made plain to her that it is time for urgent action by the UK Government if they want to avoid a constitutional conflict,” Mr Crawford said. He added there was a “real prospect that peers would reject the EU Withdrawal Bill” without legislative consent from Scotland and Wales.

Mr Crawford’s Tory deputy on the committee, Adam Tomkins, said he was optimistic that a deal will be reached even though no draft amendments have been shared with devolved administrations.

Mr Tomkins said it was “not in the interests of either government” to refuse consent. “If it were to happen, it would significantly increase pressure on the SNP to reheat independence arguments,” he said. “They know that’s toxic in the polls.”

However, a senior SNP source said they did not expect Holyrood to pass a legislative consent motion, throwing Brexit into constitutional deadlock and potentially setting Scotland on course for a second independence referendum.

Meanwhile, it emerged that ministers cannot overrule the Lords if peers try to block Brexit legislation, putting preparations for the UK’s exit at risk.

The Parliament Act allows MPs to force through legislation rejected or changed by peers in the following parliamentary session. However, the current session was extended to two years so MPs have time to pass Brexit laws needed by March 2019.

It means the government won’t be able to overrule the Lords on Brexit until the middle of 2019 - after the UK is due to leave. Scottish Labour peer Lord Foulkes the “unintended consequence” left ministers facing “some really intractable problems as a result”.

“[On Clause 11] it could be deal or bust, and that raises the stakes,” he said. Ministers have warned that the government may not be able to enforce regulations if the Withdrawal Bill isn’t in place by the time the UK leaves the EU.