Threats to EU rule of law

Commentators are trying to guess the outcome on national electoral landscapes of Europe’s current crises (the euro, migration, terrorism).

What kind of governments will be elected? What further pressures will they bring to the EU? Here are two examples of governments pushing the boundaries on rule of law questions. Is this the future, as EU consensus fades, and national sovereignty and populism rise?

The rule of law is one of the main values of the EU. Respect for it is an important precondition of membership. In a communication on the topic last year, the European Commission defined the rule of law via certain principles, including ‘legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law’.

The commission’s communication was thought necessary because certain member states were straying from the principles. The commission found that - although there were demands for it to take action - the only legal route for it to act, article 7 of the Treaty on the European Union, mentioned the suspension of voting rights of the member state concerned, which was felt to be too close to a ‘nuclear option’.

A halfway house was needed between doing nothing and using article 7. So, a new framework for dealing with systemic threats was agreed. So far it has not been used, despite a recent request.

Government interference with the power of judges is a classic threat to the rule of law, even if cloaked in populist justifications. The current Hungarian government has been the EU poster child of interference with its own courts’ system (although it is now more famous abroad for its actions during the migration crisis earlier this year).

Its interference with its own court system has been the subject of two reports by the International Bar Association’s Human Rights Institute (IBAHRI). In its first report in 2012, the IBA called on the Hungarian government to respect the decision of the country’s constitutional court and to repeal the new legislative provisions that lowered the mandatory age of retirement for judges to 62 years, forcing the immediate retirement of more than 270 justices.

The report also criticised the more or less ad hominem law which forced out the head of the constitutional court.

The second report earlier this year noted that some of the gravest concerns have now been addressed, following constructive dialogue between the government and regional and international bodies. Nevertheless, it noted a significant regressive step introduced by yet another amendment to Hungary’s fundamental law, which considerably limited the authority and role of the constitutional court, in breach of international standards.

The European Parliament has also been following the activities of the Hungarian government. It referred Hungary to the European institutions earlier this year, in the light of the commission’s new rule of law framework. However, its resolution concentrated not on the court issues, but on the Hungarian government’s stance on the death penalty and on migration.

It did refer, though, to cumulative developments over the recent past. Now the commission has replied, to say that there is no systemic threat to the rule of law in Hungary. (Of course, the neverending flow of migrants, the fact that other countries have followed Hungary’s lead in building fences along its borders, and that at least one of the Paris terrorists had come into Europe hidden among migrants, have all played into the Hungarian government’s hands.)

But Hungary is no longer alone. Poland’s new government is following its lead, in a conscious echo, trying to replace already-appointed constitutional judges with its own appointees. The ruling Law and Justice Party (PiS) has just used its majority in the lower house to pass resolutions reversing the recent appointments of five judges to the highest court. It hopes in the future to push through constitutional changes without opposition from the constitutional court.

The obvious questions are: is this the way of the future? And will the commission ever do anything about it by using its new framework? The EU is creaking at the seams.

We in the UK, of course, have no constitutional court. We have no written constitution, and parliament is supreme. I would love to know our government’s response if we had a constitutional court which disallowed some of its legislation on constitutional grounds.

Do we see a tiny - and I stress tiny - inkling in the approach it might take by seeing the lengths to which it is prepared to go to counter some of the decisions of the European Court of Human Rights?

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs