Just reading around the 1933 Enabling Act for no particular reason

Some general observations follow

1.
When we think of 'Enabling Act' and Germany, we think of the 1933 one

But in fact it was one of several in Germany after 1919 - ten or so had been made in Weimar Germany

All for very good reasons, of course

Hitler's Enabling Act was different in scale, not in principle

2.
The 1933 Enabling Act was also expressly time-bound

It was to last only for a definite period of four years

Of course, it was just then renewed (and renewed)

3.
The 1933 Enabling Act also expressly stated that it would not affect the rights of the legislature or the president

Deviations from the constitution would thereby be limited

Safeguards were in place

4.
And it was not about secret law-making

Laws were still to be published - they would just take effect the day after publication

Again, another safeguard
So: not a constitutional novelty, limited in duration, limited in its scope, respectful of the rights of the legislature, transparent

Nothing to worry about

(!)

We now know different, yet it is striking how, well, plausible parts of the Act could have seemed through 1933 eyes
And that is the thing about 'enabling' legislation - they always seems plausible

Always some good excuse to depart from tiresome checks and balances

East to nod-along to

7.
The point here perhaps is not to say all 'enabling' legislation is like 1933 Enabling Act

Of course not, that would be a sort of legalist Godwin's law thing

The point is more subtle

For some at the time, the 1933 Enabling Act did not seem too radical or disproportionate either
*easy
Actually, I think the reason I read around the 1933 Enabling Act was because it is something 'everyone knows' as part of their general stock of knowledge

And looking at such a thing afresh is always worthwhile

It was striking how plausible it must have seen to many in 1933

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More from @davidallengreen

19 Sep
The UK’s constitution is not working

When there is no proper accountability and transparency, government policymaking becomes sloppy

New by me, at @FT

ft.com/content/27e55f… Image
@FT "The UK constitution is drifting into the arena of the unwell..."

Many thanks to my lovely editors at @FT for allowing that allusion to a certain film.
@FT I am on favour of a working constitution, codified or not

A codified constitution, in principle, is neither good nor bad - and in practice can be quite bad

My view is that the 'codified' debate is a distraction from seeing how things can be improved without codification
Read 7 tweets
16 Sep
Every so often a politician speaks of 'enshrining' a thing in law, and another will talk of placing 'locks' into legislation

Both are ugly phrases but they are significant

1.
Laws are laws and statutes are statutes

They have the same effect regardless of whether they are about 'enshrined' things and 'locks'

They can be amended and repealed (and 'fudged')

2.
And so even when words like 'enshrine' and 'lock' are used, nothing special is happening to the law

It is a rhetorical not a legal device - a misdirection

3.
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14 Sep
Two current legal/constitutional events - formally unconnected - go to why there are serious problems about the UK state

1.
The first is the drama over the threatened breach of domestic and international law

What has been lost in much of thee drama is the exact nature of the threatened breach

2.
The key clauses in the Bill are, in effect, enabling clauses

They enable a minister to make regulations, regardless of whether those regulations are in breach of domestic and international law

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13 Sep
Once upon a time a government proposed breaking the law

The matter got to the first gatekeeper, the government's most senior legal official

'you cannot do that, I will resign'

But he government shrugged, and carried on its way

1.
The government came to the next gatekeeper, the Attorney General

The Attorney General nodded and clapped and cheered, and the government carried on its way

2.
The next gatekeeper was the Lord Chancellor, who had sworn to protect the Rule of Law

The Lord Chancellor said some threatened breaches of the law were acceptable, and the government carried on its way

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12 Sep
"Ha ha, you thought Article 50 would never be triggered" come the occasional taunt

Looks around at the increasing political, policy, legal and economic chaos

'And this is why,' is my response

'No sane government would have inflicted this on itself'
My view, which has been consistent since the referendum, is that Brexit should have been done by a single overall treaty between UK and EU

Dealing with both exit and relationship issues

The Article 50 process was never fit for purpose as a means of departure for a member state
I am not a Remainer and I have never had any objection to Brexit in principle

I want UK's future to be as having close Association Agreement with EU - and I think this will suit UK and EU in medium to longer term

But the rush to to exit via A50 without thought was not rational
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11 Sep
This morning it all still seems so bizarre

A Conservative government is risking a full-blown constitutional crisis and destroying its international reputation over...

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Odd
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Missing in all this - as conspicuous as a missing witness statement - is the failure of UK government to explain why it wants to depart from EU State aid rules

What exactly is the UK's alternative vision of State aid?

And why does it require this big departure?

This is the gap
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