Events on both sides of the Atlantic this week have heightened fears that the US and the UK are sliding towards autocracy under their right-wing populist leaders.
In the US, Trump has hinted heavily that he will not accept an election result that goes against him, prompting an alarmed Pentagon to insist that the US military will not play a part in any dispute, or be used to put down civil unrest after the November poll.
In the UK, Boris Johnson’s government passed the Internal Market Bill, effectively tearing up the Withdrawal Agreement it had signed with the EU in January. This was not just a massive breach of faith with the EU and with the electorate, which had voted Johnson into power on the promise of his “oven ready” deal, but also – by the government’s own admission – a clear breach of international law.
The UK’s entire legal community, including the Law Society and the Bar Council, but with the notable exception of Attorney General Suella Braverman, joined with all five living former prime ministers to condemn this flagrant undermining of the rule of law. Lawyers ridiculed Northern Ireland Secretary Brandon Lewis’s claim that the law was only being broken “in a limited and specific way”, pointing out that such a defence would be laughed out of court.
But for many legal commentators, this was no laughing matter. David Allen Green, a former government lawyer who writes for the Financial Times, posted a long Twitter thread that put the government’s actions into a wider context. He noted that:
“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. The Bill not only is in breach of UK’s obligations under the Withdrawal Agreement, but provides the statutory basis for new regulations to be made by ministers also in breach. All supposedly law-proof and court-proof.”
Green concluded that:
“Slowly and surely, the UK constitution is being disfigured so that all effective checks and balance to executive action are removed or weakened. We are moving steadily towards government by decree.”
The phrase “enabling clauses” should have rung loud alarm bells with anyone who remembers the history of fascism in the twentieth century. In the 1930s, the end of democracy and the rule of law in Germany was marked by the Nazis’ passing of the so-called Enabling Act of 1933, which gave them powers to rule by executive decree.
They might also have remembered that Hitler began his career as an international criminal by campaigning to breach international treaties, most notably the Treaty of Versailles, which he attacked relentlessly in the 1920s as a plot “to ruin the German nation”.
Boris Johnson sought to justify his government’s disregard for the rule of law by precisely the same means, claiming that the Withdrawal Treaty – his signing of which he had hailed in January as a “fantastic moment” for the UK – had in fact handed the EU “the power to break up our country” and alleging that the EU had threated Britain with a “food blockade” – an allegation for which he produced no evidence and which the EU strongly denies.
No sooner had the Internal Market Bill been passed – with any Tory MPs who expressed misgivings being threatened with expulsion from the party if they should dare to vote against it – than the Conservative Party sought to brand MPs who had tried to uphold the rule of law and opposed this executive power grab as traitors who had voted to side with the EU.
This seems a good moment to remember the lessons of history – and few authorities are better able to convey these than leading historian of Nazism and Yale University professor, Timothy Snyder.
In a 2019 interview, Snyder spelled out the reasons why the techniques used by twentieth century fascists are not just a relics of the past but a clear and present danger today. He observed that:
“Some of the people who are involved in current politics are people who have learned from the 1920s and 1930s and are borrowing some of the tactics from the 1920s and 1930s.”
These tactics are not just rhetorical – “always find simple slogans and repeat them over and over again with the effect of dividing your listeners into us and them” – but also ideological, particularly the idea that “politics is not about reasoned dispute leading to constructive policy but is in fact fundamentally about friends and enemies – that’s a basic fascist idea that was articulated maybe most clearly by Carl Schmitt. That has clearly returned as a tactic.”
Snyder’s referencing of the Nazis’ favourite jurist Carl Schmitt is particularly interesting in the light of the approach to the rule of law demonstrated by Boris Johnson and his enablers. As David Lewis, senior lecturer in politics at the University of Exeter, explains:
“Schmitt argues that effective states need a truly sovereign leader who is not shackled by constitutions, laws and treaties. A truly sovereign president who will cut through red tape and take whatever action is necessary […] The rule of law is an obstacle to be overcome – not a principle to be embraced. “
Asked why there should be a problem with a government harnessing “the popular will of a majority”, Timothy Snyder stressed the paramount importance of “the essence of the tradition of Anglo-Saxon law, going back to the Magna Carta. There’s a reason why we have law and the reason why we have law is that law comes before the king, or in modern times law comes before the ruler. Which means law comes before whatever momentary urges the ruler might say he is embodying.
“So if we say whatever we think at this particular moment is what goes, that means we’re saying goodbye to law, we’re saying goodbye to predictability, we’re saying goodbye to the basis of the system that we have.”
In July 1940, a book entitled Guilty Men was published under the pseudonym ‘Cato’. It was actually written by three journalists: the future Labour leader Michael Foot, the former Liberal MP Frank Owen, and Peter Howard, a Conservative. Its title referred to the leading figures of the British establishment who had sought to appease fascism over the previous decade.
The 340 Tory MPs who voted to say goodbye to the rule of law on Monday night were not all men. But in every other respect, the epithet of the book’s title applies very well to them.
They are guilty not just of enabling an utterly irresponsible leader to besmirch the UK’s international reputation, but of pushing our country a big step further down the road towards corrupt autocracy.