The government could obtain absolute power and we would be impotent to prevent itby David Allen Green / October 5, 2020 / Leave a comment
The last five years have shown that authoritarian populist nationalism is not always just for other countries. The politics and policies that once seemed to be a problem abroad have turned out to be something that can manifest just as easily in the US and the UK.
And if politics and policies can take this authoritarian turn, then so, in principle, can laws. The question then becomes how far could a government go, if it wished, in imposing a system of law by ministerial decree and without parliament? Could, for example, an enabling act really happen here?
We need to be precise as to what this means. The legislation most people think of when they hear of an enabling act is, of course, that enacted in Germany in 1933. In the aftermath of the Reichstag fire, in the makeshift assembly in the Kroll Opera House, a short bill was passed that went on to enable the personal rule of the new chancellor Adolf Hitler.
What is often not realised is that the 1933 Act was not that unusual at the time. Before 1933, the unstable Weimar Republic had seen a succession of enabling acts to bypass constitutional inconveniences. The Nazis simply took the idea a step further. On the face of it, the 1933 legislation even contained protections against abuse and was time-limited. These protections failed, of course, and the Act was renewed and then made perpetual. The 1933 Act is now the notorious archetype of enabling legislation, but it is not the only example.
In the UK, as in other democracies, provisions already exist that empower ministers to issue laws in specific and exceptional contexts, with these having the same effect as if they had been passed as statute. An enabling act would just make this existing practice the norm, not the exception. To say that a government may want to introduce such an enabling act is not to affirm “Godwin’s law” about all internet conversations descending into Hitler comparisons, but to instead state that authoritarian leaders tend to dismantle what stops them from carrying out their will.
The key to understanding enabling acts is that, necessarily, they are also disabling acts. They proceed by way of equal…