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Last weekend there was a news article about the Reform party which contained this passage:
“Nigel Farage’s party has promised it will enact a radical programme. One senior member said this would be modelled on the second Trump administration. The US president made many changes via executive orders rather than via Congress.”
Readers of this blog (and of my stuff elsewhere) should not be surprised by this.
Last year this blog set out how an incoming illiberal administration would have significant constitutional powers to do illiberal things with few or no checks and balances, as such legal instruments receive little or no parliamentary scrutiny.
In particular, such a new government would have the power of issuing at scale statutory instruments and other delegated legislation:
“The possibly third constitutional super-power is the sheer range and wealth of discretionary powers of the government not under the Royal Prerogative but already existing under perhaps thousands of legislative provisions.
“Some of these provisions under Acts of Parliament even allow ministers to change the law by ministerial discretion, as well as to issue statutory instruments and other instruments (such as statutory guidance) with legal effect.
“Every successive government has added more of these provisions, even if they complained about them in opposition.
And it would be open to a government under the first constitutional super-power – the doctrine of parliamentary supremacy – to add even more of these powers
“One suspects various “think-tanks” are already collating the discretionary powers that already exist, ready to arm – DOGE-style – an incoming radical and illiberal government.
“Such an incoming government would not need to break the law – for the law already will provide almost all the powers such a government could want.”
These legal instruments are not called “executive orders” – that is an Americanism.
But the sentiment is the same.
And the problem is that the current government – as with all governments whatever the parties in office – likes these legal instruments far too much to give them up.
A sensible government would prudently pass measures to limit the power of ministers to rule by fiat – to reduce the scope of discretionary powers to (for example) make, amend or repeal legislation.
But, of course, we do not have a sensible government acting prudently to make more difficult for a possible illiberal administration.
And so those who have warned about these powers and of how they could misused will only have the dubious consolation of saying “we told you so” if an incoming illiberal government uses these powers in illiberal ways.
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This post is also cross posted at The Empty City substack, which is run in parallel with this blog.
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Thank you for this David. I would hope that some people within the mainstream parties and even inner circles of government read your blog. It’s imperative that they understand this.