The EU is locked in a crucial fight with Poland. And the UK supports the bad side | Will hutton
IIt should be a time when the values of the European Enlightenment, embodied triumphantly in the astonishing ability to deliver anti-Covid vaccines within 12 months, are expected to soar. “Daring to know”, the great maxim of Emmanuel Kant who delivers such a brilliant science, is integral to the principles of tolerance of difference and good government based on the separation of powers between the executive, the legislative and the judicial. These underpin the rule of law and constitute fundamental preconditions for EU membership enshrined in its treaties. The UK government, for its part, demands that applicants for citizenship know that the rule of law, and what underpins it, is a supreme British value. However, everywhere, these principles of the Enlightenment are called into question.
So, as Justice Secretary Dominic Raab contemplates a derogation from British judicial independence by giving ministers the power to change judges’ verdicts if they deem them to be “incorrect”, the EU is faced with a real crisis concerning the rule of law. The Polish government is doing what Raab, at least for now, is only considering.
In a case brought by its prime minister earlier this month, Poland’s Supreme Court ruled that court challenges, based on EU law embodied in EU treaties, would be constitutionally inadmissible. These include challenging the government to discipline judges for “incorrect” rulings and limiting their independence, thereby allowing politicians who make anti-gay statements, deny climate change, or limit press freedom. . Unsurprisingly, a court crowded with men and women of the Prime Minister found for him: EU law was “not compatible” with the Polish constitution.
The Polish government, led by the extremist social-conservative Law and Justice party, should not be forced to do what it wants, so that while a third of Polish cities have issued proclamations declaring themselves “zones without LGBT ideology” , nothing can be done. In vain could the President of the EU, Ursula von der Leyen, declare that such areas are “without humanity”, that they have no place in a “union of equality”. It is powerless to endow Polish citizens with the legal rights available to citizens of other EU member states to challenge their government.
Poland may have signed EU treaties enshrining principles of the separation of powers and the rule of law, but if declared constitutionally invalid, Polish citizens become members of the second EU class. British citizens will also be at a loss if Raab and Boris Johnson decide to create mechanisms to discipline judges for ‘incorrect’ decisions, but there is no EU to attempt our rescue.
On Poland, the EU, after years of procrastination and weak threats, is finally acting. The judgment, said Von der Leyen, “calls into question the foundations of the EU. It is a direct challenge to the unity of the European legal order ”, an opinion supported by the European Parliament and openly by the French, Dutch and Belgian governments. Last Wednesday, the European Court of Justice (ECJ) imposed a daily fine of 1 million euros (£ 845,000) on the Polish Supreme Court for failing to dissolve its disciplinary chamber. Since the same Supreme Court ruled that the chamber is legal, no compromise is in sight. It shouldn’t be either. It is a battle the EU must win.
It is withholding 36 billion euros in post-pandemic funding, Poland’s share in the EU’s recovery fund. Prime Minister Mateusz Morawiecki is adamant. There is no question of Poland leaving the EU, he said. He knows that Polish support for the EU is high (seen, as it is, as a source of prosperity and a bulwark against Russia), but he threatens to cripple EU operations. Poland will leave the EU’s new green deal. It will keep its coal mines and coal-fired power stations open. He will veto routine EU legislation. He will question the way in which Germany appoints its judges. If agreements like the EU arrest warrant become ineffective, so be it. The ECJ must be beaten.
In all of this, Morawiecki has a supporter in Europe – Boris Johnson, who took the time on Friday to explain to him over the phone how, echoing Poland’s experience, Britain wanted to end all jurisdiction of the ECJ in Northern Ireland. Poland’s fight was Britain’s fight against the Northern Ireland Protocol. Britain makes common cause with Poland – for national constitutional autonomy against the imperial ambitions of Brussels. Perhaps, Johnson hopes, the fear of “Polexit” could cause the EU to give in, abandon its “bureaucratic” defense of its legal order and pave the way for a famous victory in Northern Ireland.
Johnson misjudges both the EU’s unanimity and his passion for Enlightenment values. The fact that his new ally deplores “LGBT ideology”, denies climate change, wants to abolish abortion, denounces press freedom, has racist views on immigration and is sympathetic to anti-vaccines should make him reflect. More concretely, he should know that Morawiecki is fighting for his political life. Its base in hyper-conservative Catholic southeastern Poland shrinks as liberal cities expand. Pro-EU protests are on the streets. The obvious Brexit disaster has all but wiped out the anti-EU cause, so any threat to leave it would be economic and political suicide.
Johnson supports a losing horse. The far-right plan to curtail Enlightenment freedoms to enact hyper-conservative legislation and override treaty obligations may sound appealing to a vocal base. But it is called into question, there as here.
The EU will hold on. In Britain, it was telling that the Office for Budget Responsibility said last week that Brexit would cost the country twice as much permanent loss of production and prosperity as Covid, heralding a new era of a virtually zero economy. growth, so Brexit hits our trade. But more importantly, Britain is a quintessential Enlightenment country; on this point, the citizen application test is right.
We should be flawless alongside the best in Europe, not plotting to flout our core values and beliefs. This is not where the majority of Britons are. Hyper-conservatism is not a vote winner and if this is what the makers of Brexit want it to become, it will eventually be reversed.