The self-modifying enabling law

The UK government seems to be so pressed for time to get their Brexit legal framework going, that they’ve taken to translating old German laws to fill in the gap — with certain pernicious modern features. I thought this stuff about “Henry VIII” powers was just hysteria, but the proposed European Union Withdrawal bill is nothing short of a dictatorial power grab.

The text may be found here. Section 7 deals with “regulations” for implementing the law:

A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate— (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU.

and in paragraph 4 we read:

Regulations under this section may make any provision that could be made by an Act of Parliament.

Compare to the German original:

Reichsgesetze können außer in dem in der Reichsverfassung vorgesehenen Verfahren auch durch die Reichsregierung beschlossen werden.

[In addition to the methods described in the Reich constitution, laws may also be determined by the government.]

Now, the next paragraph does list a few exceptions to the sweeping powers being turned over to the government. This being a Conservative bill, they don’t want to give even their own ministers the power to raise taxes, so tax increases (but not decreases) are the number one point of exclusion. The Human Rights Act and the Good Friday Agreement can’t be changed by these rules, so that’s a constraint. The regulations cannot “create a… criminal offence”, but presumably they can still redefine old ones, and modify the penalties. They are only allowed to make regulations that they “consider appropriate”, so any regulations that the government itself considers inappropriate are ruled out.

In case these  constraints (or the time limit) gets to seeming onerous, there’s a very modern solution. When you go down to section 9, on “Implementing the Withdrawal Agreement”, you again find the text about ministers being permitted wide latitude to create “regulations” that they “consider appropriate” with one crucial addition:

Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).

So if they decide that it would be appropriate to arrest certain treasonous Labour MPs who are impeding the progress of Brexit, or even (God forfend) raise taxes, their first step is simply to modify this law to permit them to make a new regulation changing the law on treason or taxes. The same applies to the time limit. The German original was set to expire after 4 years, but was then extended. The British version is set to expire two years after the “exit day”.

If this seems far-fetched, think about how the US president made use of the seemingly innocuous congressional “Authorization for the Use of Military Force” against those responsible for the September 11 attacks, to give legal cover for nonjudicial detentions, torture, and warrantless surveillance. To the extent that there was any ultimate constraint on this spread of arbitrary power it came only from the loss of presidential authority resulting from the blatant failure of the military endeavours.

We can argue forever the perennial question — evil or incompetent — over May’s strategy first to create a crisis by setting the clock running on Brexit, and then to claim that the crisis can be managed only by giving her extraordinary powers. But the Tories have taken this EU withdrawal disaster as an occasion to place a time bomb in the centre of the UK constitution.

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