An enabling act could happen here

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 and opposite reaction—enabling a government to do something it otherwise would not be able to do, because of some check or other restriction. The legislation operates by disapplying that impediment. And so whenever we have enabling legislation, the crucial questions are: What is being disabled and why?

In America, an enabling act would be difficult. This is because any fundamental legal change is difficult by reason of their codified constitution, which entrenches many checks. Even though Trump’s rhetoric is dismissive of any restraint to his power, it would be hard for him to institute government by decree. Even his many so-called “executive orders” often have no legal consequence.

But in the UK, where the constitution is not codified and thereby more malleable, the situation is significantly different. If a government went about it in a certain way, there would be no barrier to the enactment of sweeping enabling legislation here. There could feasibly be a series of Acts of Parliament that would allow ministers to issue regulations and directions with full legal effect across all policy areas.

There are two general reasons why this would be possible. The first is the doctrine of parliamentary sovereignty. Once a statute is enacted, it cannot be gainsaid by any court. The exceptions are if there is an inadvertent conflict with other legislation, when judges would need to decide which law takes priority, but that eventuality can be avoided with careful drafting. The fiction adopted by the courts would be that the sovereign parliament “intended” for ministers to have these wide powers. 

If a government can get a suitable law through parliament, it can obtain absolute legal power. In some fields, there are already laws that give ministers the power not only to make regulations, but to amend other statutes. During the pandemic, ministerial regulations were easily imposed that infringed fundamental rights to movement and assembly, creating the broadest possible criminal offences. By the time a challenge was heard by the high court, the judges shrugged and said the challenges were “academic” because the government had since changed the laws.

So far the only limits have been what both houses of parliament have been prepared to pass and what the government has sought to get away with. But this is a self-denying ordinance and offers no real protection, especially with the worrying readiness of British governments since 2015 to trespass upon the norms and conventions of the constitution, as seen for example when parliament was abortively shut down last year. 

The second reason why an enabling act would be possible in the UK is the lack of entrenched civil liberties beyond the reach of any illiberal statute. The Human Rights Act, despite notoriety with the populists, is a weak regime that enables the government to rely on wide qualifications to almost all relevant rights and, even if an infringement is finally established, it provides no ultimate remedy against any primary legislation at fault. Even if a judge finds a violation of a fundamental right, the plain wording of an Act of Parliament still has to be applied. And, of course, courts are routinely sympathetic to “national security,” “public health” or any other important-sounding justification.

There are perhaps certain things a British government could not get away with through an enabling act. It is unlikely that any legislation could abolish the supervisory jurisdiction of the high court, as it is a truism that it falls to a court to interpret and enforce the meaning of legislation. But given the habitual deference of judges, the government probably would not need to do so. 

And any legislation ultimately depends on the goodwill or at least cooperation of the governed, and so an enabling act could be undermined in its implementation if it was seen to go “too far,” but that is hardly a satisfactory safeguard. The ugly truth is that an enabling act could all too easily happen here.