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Analysis

MPs mustn’t allow Repeal Bill to castrate them

by Hugo Dixon | 06.09.2017

The government’s so-called Repeal Bill has sweeping powers that could be used to bypass parliamentary scrutiny of any Brexit deal. It must be amended.

The government promised earlier this year that there will be votes in both Houses of Parliament on any “withdrawal agreement” we reach with the EU. This commitment suffered from three defects: we only have the government’s promise rather than something enshrined in law; if parliament doesn’t like the final deal, the government will crash out of the EU rather than seek to change the deal or ask the public if it still wants to quit the union; and Theresa May hasn’t made any promise to consult Parliament if she doesn’t clinch any deal at all.

The Repeal Bill, which MPs start debating tomorrow, will make things worse. There has already been commentary on how its so-called Henry VIII powers will give ministers the ability to modify EU regulations post-Brexit with only minimal parliamentary scrutiny. Much less attention has been paid to the sweeping powers ministers want in the period before Brexit.

The relevant section is Clause 9. The first part gives ministers the right to pass any regulations they think are needed to implement the withdrawal agreement – which the Bill defines as a deal to quit the EU, “whether or not ratified”. The second part of Clause 9 explains that ministers can even pass regulations to change the Repeal Bill itself.

Clause 9 is a massive blank cheque.  A briefing paper by the House of Commons Library says it could have “the most significant legal impact” of all the powers in the Bill. In theory, ministers could use it to do pretty much anything it pleased with the withdrawal agreement – and to do this even before it knew whether Parliament was going to approve the deal.

It is vital that Parliament amends this power and ensures that it has a meaningful say at the end of the Brexit process. This means, at the minimum, making two changes.

First, the Bill should be amended to enshrine in law the government’s promise to get parliamentary approval for any withdrawal agreement. Parliamentary approval should also be required if the government wants to crash out of the EU without a deal. A proposal backed by the House of Lords in February, but subsequently overturned in the House of Commons, could provide a good model for this. See amendment 3.

Second, the Bill should be amended so the government is not allowed to use the powers in Clause 9 at least until and unless Parliament approves any deal it negotiates with the EU. The powers in Clause 9 also need to be made less sweeping.

If the Bill is passed without such amendments, Parliament will be potentially allowing ministers to castrate it on the most important issue the country has faced since World War Two.

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Edited by Luke Lythgoe