The concept of “wash up” has become subject of greater attention just before the last few general elections, but it’s not nearly as special as descriptions make it sound. What happens is that just before Parliament is dissolved for a general election various pieces of legislation are rushed through rather than be lost and have to start again from scratch after the election. There are no special Parliamentary rules to allow this speedy legislation. Instead, Parliament just has to vote for speedy processes as it can at any other time in the Parliamentary cycle. If you have the votes, you can have the speed.
With no one party having an overall majority in the House of Lords, the process therefore requires a degree of cross-party agreement and the attitude from both Labour and Conservatives is very much that this means Labour and Tories have to agree. But there is no formal requirement for cross-party agreement; all that is required is a majority of one in votes.
Although Labour has a majority in the Commons, and with Lib Dems and others can have a majority in the Lords, it is accommodation with the Conservatives that Labour has been seeking in the preliminary chatter about how wash up may operate this time round.
The proposed referendum on AV is almost certainly going to die a death as Labour does not seem to be up for pushing it and other constitutional reform through. Matters are more complicated on the Digital Economy Bill.
In the Commons, Labour has enough votes on its own, in theory, to get the Bill through with all the controversial clauses intact. There may be sufficient Labour rebels to force some changes,but it will be hard to have a successful rebellion when so many MPs would rather be campaigning in their constituencies and when the Conservatives have said they back the Bill, including its controversial elements.
Some amendments are certain to be made in the Commons, as there are changes the Government wants to (un)make to the Bill. That will then require those parts of the Bill to go back again to the House of Lords.
Labour is likely to get its way in the Lords also as the Conservatives in the Lords back the Digital Economy Bill and its controversial elements. In addition, Conservative peers have been very reluctant to face down the House of Commons. When controversial legislation has gone back and forth between Commons and Lords in the past, even when the Conservatives are solidly opposed to it they have reasonably quickly pulled back from opposition on the basis that they do not want the Lords to usurp the Commons.
Therefore even if the Tories decide to back some further changes to the Digital Economy Bill, unless there are sufficient Labour rebels to win a vote in the Commons, it is very unlikely that Conservative peers will see the matter through and insist on those changes.
What does this all mean overall? It’s that the real power over the Digital Economy Bill rests with David Cameron and the Conservative Shadow Cabinet. If they decide to oppose the Bill – and to oppose it on the principle that controversial, complicated legislation should not be rushed through – then that will be sufficient to win the votes in the Lords and to provide a decent reason for the Lords to stand its ground. The Lords would not be usurping the Commons; it would just be insisting the Commons should have proper debates.
The likely Liberal Democrat votes against in both Commons and Lords, whilst welcome, will not in themselves be sufficient.
A final thought about the timing: many MPs will face a tough choice between being in their constituencies, talking to constituents in advance of the election, or being in Westminster, voting on the Bill. When legislation is properly timetabled, MPs can balance those choices appropriately. When it is rushed through, it is much harder to balance those conflicting demands on finite time. The real blame for MPs missing votes on the Digital Economy Bill will be Labour’s decision to push ahead with it in the dying days of the Parliament.
When Labour and the Tories called a snap sudden vote on freedom of information over MPs’ expenses, some campaigners subsequently blamed MPs who were absent from the vote rather than the Labour and Tory whips who forced a sudden vote. Wiser campaigners this time round should not blame those who should be their allies but instead put blame where it is deserved: on those who insist on badly timed votes.