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12 September 2017updated 09 Sep 2021 5:55pm

How MPs can defend parliament against a Henry VIII power grab

MPs must be able to hold government ministers to account.

By Ruth Fox

Can MPs secure parliamentary accountability for the powers enshrined in the EU (Withdrawal) Bill? That’s the essential question now facing them as the bill rolls forward for committee stage amendment in October.

Important constitutional principles about the relationship between the executive and the legislature are at stake. The overarching challenge is the conjunction of the wide delegated powers in the Bill (including controversial Henry VIII powers to amend or repeal primary legislation by delegated – or secondary – legislation) with inadequate scrutiny procedures for the ways these powers might be exercised by ministers.

This combination of extraordinary powers and inadequate scrutiny procedures will seriously inhibit the ability of MPs to hold the government to account for the policy choices arising from our withdrawal from the EU.

In our new report, “Taking Back Control for Brexit and Beyond: Delegated Legislation, Parliamentary Scrutiny and the EU (Withdrawal) Bill“, the Hansard Society has proposed a three-part solution which was referenced favourably by MPs from all parties during the second reading debate.

First, the bill should be amended. The powers it delegates should be restricted more tightly. This can be done by drawing on precedents set in other Acts of Parliament.

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Second, as with previous bills that have conferred significant powers on ministers, the bill should be accompanied by a strengthened scrutiny procedure. Parliament, not ministers, should decide how the exercise of the powers will be scrutinised. Former Attorney General Dominic Grieve has tabled an amendment that will broadly deliver this reform. Given the concerns on both sides of the House, I hope MPs will work across party lines to improve this aspect of the Bill.

Third, a new Delegated Legislation Scrutiny Committee should be established in the House of Commons to “triage” or “sift and scrutinise” all delegated legislation (in the form of statutory instruments). If this committee is concerned by some aspect of legislation, it can turn it over to the whole House for further consideration. Any statutory instrument reported to the House would have to be debated and voted on. MPs should have enough power that ministers cannot ignore their concerns, as they do frequently under the current system.

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An alternative option would be a joint committee with the House of Lords. But members of both Houses dislike joint committees. The scrutiny culture in the two Houses is very different, and attendance by MPs can be patchy. The risk is that accountability for scrutiny will, in practice, be left to unelected peers.

The inadequacies of the current scrutiny system in the House of Commons have long been acknowledged but ignored. The EU (Withdrawal) Bill means MPs must finally take seriously their democratic responsibility for delegated legislation. The government has indicated it is open to a discussion about improvements. If MPs grasp the opportunity, they could not only remedy the problems in this bill but also secure improved parliamentary control over delegated legislation in all future bills. If MPs want to influence policy in the interests of their constituents, then that’s a prize worth fighting for.

Ruth Fox is director of the Hansard Society