Boris Johnson seems to think of himself as the politician who can do impossible things, and in some ways, he is right. His latest trick is to push the dustiest branch of the UK legislature into becoming cutting-edge rebels—quite some feat. The rebellions in the House of Lords have targeted, for example, a new immigration bill which would penalise Ukrainian and other people fleeing warzones in ways that seek to tear the heart out of the 1951 Refugee Convention—even as the government seeks to boast of its generosity to those same refugees.
Traditionally, the Lords have been seen as the undemocratic add-on, a constitutional curiosity in a parliamentary democracy. Other countries have upper chambers which consist of elected representatives. Britain has an upper chamber consisting of the appointed great-and-good, “lords spiritual,” judges, viscounts and earls.
The peers—especially those with legal or other professional expertise—have sought to ensure that legislation has all clauses correctly framed and commas in the right place. With occasional exceptions, their contributions have been uncontroversial.
The arrival of Boris Johnson in Downing Street has, however, turned that upside down. The unelected Lords have become a startling last-ditch defence for democracy and the rule of law. Johnson has persuaded usually cautious peers to express fiery indignation in ways that few of them could have imagined.
For 40 years, from Margaret Thatcher to Theresa May, the House of Lords voted government proposals down infrequently and reluctantly—on average around 25 times a year. In the past two years, that has shot up, more even than the Brexit rebellions against May. During the 2021-2022 parliamentary session alone, we have seen more than 80 acts of lordly defiance so far, with numbers rising every week.
Thus, in January the Lords inflicted 13 defeats on the government’s Police, Crime, Sentencing and Courts Bill, kicking out some of the worst proposals to restrict the right to protest. There were 20 defeats with significant majorities on the Nationality and Borders Bill in recent weeks, for example on proposals to introduce a “two-tier” system for refugees and to criminalise those arriving here without all the perfect paperwork (in other words, most refugees).
As remarkable as the majorities voting the government down was the tone of their objections. One former Supreme Court justice, Lord Brown, described the Nationality and Borders Bill as a “grotesque piece of legislation,” and others echoed that sentiment.
Johnson’s propensity for making outlandish claims about everything from Downing Street parties to his own legislation has become a source of irritation for the scrupulous peers. A former Lord Chief Justice, Lord Judge, aptly complained of “echoes of the Christmas pantomime.” The government likes to declare: “Oh yes, this is compliant with international law!” The UN and legal experts respond in unison, “Oh no it’s not!” The government retorts, without troubling to provide supporting arguments, “Oh yes it is!” But, as an impatient Lord Judge pointed out: “This is not a pantomime. This is lawmaking.”
On 17th March, Michelle Bachelet, UN High Commissioner for Human Rights—herself a torture survivor—said that the Lords vote was a “compelling reason” for the government to bring the legislation into compliance with international law.
When push comes to constitutional shove, the government has, in the past, usually had its way in the end. Until now, Lords condemnation of government proposals rarely survived more than a single round of parliamentary “ping pong” between the two chambers. But that may be changing because of Johnson’s perceived lawlessness. One senior crossbencher argues that the gravity of what the government is proposing makes the Borders Bill an occasion when “the rallies should go on beyond a single return of service.”
Johnson has an 80-seat majority in the Commons, which until now has enabled him to push back against the Lords, where there is no government majority. Sometimes, however, polite etiquette is abandoned. Last year, the government proposed de facto torture impunity for British troops abroad. It denied doing so, but the facts were undeniable, as the UN and others pointed out. Peers’ revulsion at the government’s disdain for legality and the likely damage to Britain’s reputation led them to vote down proposals for a “presumption against prosecution” for torture and other war crimes by a 105-strong majority.
The government, faced with a mixture of public criticism and the prospect of repeated condemnation in the Lords, performed a handbrake turn and said that—on reflection—war crimes should of course be punished, after all.
If MPs find their moral backbone, the same might happen with the Nationality and Borders Bill this month. This week, the Lords confirmed their rejection of some the most toxic clauses in the anti-refugee bill, which, as former UN Secretary-General Ban Ki-moon points out, would “threaten the integrity of the global asylum system.”
The amended bill is expected to return to the Commons on 22nd March. MPs will have to decide whether to slam the door in the faces of Ukrainian refugees or others fleeing brutality, or to respond to the moral and legal lead from the “other place.”
We must hope that a majority on all sides of the House will see sense and humanity, particularly in the context of the nightmare that Vladimir Putin has unleashed. Most peers have no desire to be in a prolonged legislative bun-fight with the House of Commons. That was never how the system was supposed to work. But, then again, we were never supposed to have a government that cared so little about truth, humanity or tearing up longstanding obligations.
The rebellions on behalf of democracy and the rule of law cannot be confined to the House of Lords, however welcome those may be. We need elected members also to play their part, in speaking plain truth to power against the prime minister’s inhumane and dangerous policies.
