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How MPs can defend parliament against a Henry VIII power grab

MPs must be able to hold government ministers to account.

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.

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.

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

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Will the Brexit Cabinet talks end in a “three baskets” approach?

The joy of the three baskets idea is that everyone gets to tell themselves that it will be their basket that ends up the fullest. 

It's decision day in the Brexit talks. Again.

The Brexit inner Cabinet will meet to hammer out not its final position, but the shape of its negotiating position. The expected result: an agreement on an end state in which the United Kingdom agrees it will follow EU regulations as it were still a member, for example on aviation; will agree to follow EU objectives but go about them in its own way, for example on recycling, where the British government wants to do more on plastic and less on glass; and finally, in some areas, it will go its way completely, for instance on financial services. Or as it has come to be known in Whitehall, the "three baskets" approach.

For all the lengthy run-up, this bit isn't expected to be difficult: the joy of the three baskets idea is that everyone gets to tell themselves that it will be their basket that ends up the fullest. There are two difficulties: the first is that the EU27 won't play ball, and the second is that MPs will kick off when it emerges that their preferred basket is essentially empty.

The objections of the EU27 are perhaps somewhat overwritten. The demands of keeping the Irish border open, maintaining Europol and EU-wide defence operations means that in a large number of areas, a very close regulatory and political relationship is in everyone's interests. But everyone knows that in order for the Conservative government to actually sign the thing, there is going to have to be some divergence somewhere.

The bigger problem is what happens here at home when it turns out that the third basket - that is to say, full regulatory autonomy - is confined to fishing and the "industries of the future". The European Research Group may have a few more letters left to send yet.

Stephen Bush is special correspondent at the New Statesman and the PSA's Journalist of the Year. His daily briefing, Morning Call, provides a quick and essential guide to domestic and global politics.