Rhetoric and political realities
A ‘rule of law’ which protects property rights above all else guarantees nothing but authoritarian demagogy, argues Mike Macnair
On the streets, defending the constitution
On Saturday July 29 the European Commission launched formal legal enforcement proceedings against Poland over that part of its ‘judiciary reform’ which has been signed into law.1 On July 24 the Polish president, Andrzej Duda, had vetoed two of the bills, which were directed at sacking the whole of the senior judiciary (except such as the government decided to keep) and giving the government majority control over the judicial appointments body.2
The commission’s proceedings concern the act affecting the lower judiciary and its objections are twofold. The first is that the legislation explicitly discriminates between men and women as to retiring ages: women to retire at 60, men at 65. This is very straightforwardly a violation of EU anti-discrimination law.
The second is that the legislation undermines the independence of the judiciary. This, they say, is contrary to article 19 (1) of the Treaty on European Union (“Member-states shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law”), and to article 47 of the EU Charter of Fundamental Rights (“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented ...”).
It is so, the commission alleges, because the minister is given the power to keep judges in office after the prescribed retirement dates, but subject to very vague criteria and not for any definite period. Then these judges will hold office, to use the old English Latin tag, durante bene placito regis:as long as it pleases the king (here, the minister). In addition, the act gives the minister the power to appoint and dismiss the presidents of local courts, who will have management responsibilities in relation to their more junior colleagues.
The European Commission’s press release explains the process in these terms:
The rule of law is one of the common values upon which the European Union is founded. It is enshrined in article 2 of the Treaty on European Union. The European Commission, together with the European parliament and the council, is responsible under the treaties for guaranteeing the respect of the rule of law as a fundamental value of our Union ...
Article 2 of the Treaty on European Union provides that
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the member-states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
And motherhood and apple pie too ...
Coincidentally, the supreme court of the United Kingdom on July 26 handed down judgment in R (UNISON) v Lord Chancellor.3 The court ruled that the scheme for employment tribunal fees introduced by the Employment Tribunal and Employment Appeal Tribunal Fees Order 20134 was unlawful on the ground that it interfered unjustifiably with access to justice; this was primarily, the court said, a violation of a principle of English common law, though it was also a violation of EU law and discriminatory against women and other protected groups.
Lord Reed, giving the lead judgment, comments:
Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law. The case has therefore been argued primarily on the basis of the common law right of access to justice, although arguments have also been presented on the basis of EU law and the European Convention on Human Rights ... (para 64).
The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood ... (para 66).
At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the parliament which makes those laws includes members of parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law.
In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by parliament may be rendered nugatory, and the democratic election of members of parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other (para 68).
The new fees structure had cut employment tribunal applications by 66%-70%, with low-value claims particularly hard hit. The discretionary power of the lord chancellor to remit fees had been only minimally used. There was thus a clear denial of access to justice.
The new fees system was introduced, it should be noted, by the Con-Demcoalition, not Cameron’s 2015 Conservative majority government. Anyone who has surviving illusions in an ‘anti-Tory alliance’ including the Liberal Democrats should keep in mind this vicious and devious attack on poorly paid people, whose employers have violated their technical legal rights. According to The Guardian,Vince Cable “backed the fees when they were introduced in 2013, saying they would make Britain more ‘enterprise-friendly’, and said changes would ‘help ensure that people who work hard and do the right thing are rewarded’”.5
Both these events are at the end of the day political rhetoric. To take the UK supreme court judgment first, the statement from minister for justice Dominic Raab in response to the judgment said:
In setting employment tribunal fees, the government has to consider access to justice, the costs of litigation, and how we fund the tribunals.
The supreme court recognised the important role fees can play, but ruled that we have not struck the right balance in this case.
We will take immediate steps to stop charging fees in employment tribunals and put in place arrangements to refund those who have paid.
We will also further consider the detail of the judgment.6
This is carefully ambiguous. The government downplays the judicial rhetoric. It accepts defeat on the immediate issue, but will not introduce immediate legislation to reverse the decision - unlike the NHS (Invalid Direction) Act 1980.
Instead it will “further consider the detail of the judgment” in the effort to find some alternative means to the same end: that is, to get rid of the pain in the neck for small employers of being sued to try to force them to comply with legal liabilities about paying employees, not making unlawful deductions from pay, not sacking people for pregnancy, and so on, and on.
The Tories certainly could (if they had a majority) achieve the result, and Brexit will help on this front. The point of the judgment is that they cannot impose large fees which are proportionately so high in relation to potential awards as to deny access to the tribunal system. But they could perfectly well abolish the tribunal system itself, forcing employees to go to the small claims or county courts, where fees are already routine. This would not be a denial of access to justice within the terms stated by the judgment. Or, equally, they could get rid of the legal rights in question. Neither would violate the principles of the UK superme court decision.
Either getting rid of the tribunal system or getting rid of the legal rights would require primary legislation - an actual act of parliament passed by both houses. Indeed, the government could simply re-impose the fee structure by primary legislation. The judgment does not say at all that parliament cannot deny access to justice. It says only that if parliament wants to deny access to justice it must do so by “clear words” in an act of parliament - not by ambiguous words or in a subordinate ministerial order.
In the present political climate such an act would be unlikely to pass. Getting rid of some of the legal rights would in addition require Brexit to be completed, since some of these rights are EU law. In fact, the judicial rhetoric about the rule of law and access to justice is bold in this case precisely because of the political climate. If the June general election had resulted in an increased Tory majority, a judicial decision like the present one would have attracted violent press hostility, like the decision on triggering article 50. And, like that decision and the European Union (Notification of Withdrawal) Act 2017, and like the NHS (Invalid Direction) Act 1980, the government could have overcome the problem with a very short bill run quickly through parliament. The changed political climate enables the judicial intervention to have serious effects.
The European Commission’s proceedings against Poland are the other side of the same coin. The politics of the situation mean that this legal intervention is unlikely to be effective. The commission’s press release includes a diagram of the proceedings possible where there is a “threat to the rule of law” in a member-state, and in addition the text of article 7 of the Treaty on European Union which provides for sanctions. The relevant points are:
2. The European Council, acting by unanimity on a proposal by one third of the member-states or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a member-state of the values referred to in article 2, after inviting the member-state in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the treaties to the member-state in question, including the voting rights of the representative of the government of that member-state in the Council.
The European Council can thus only act to suspend voting rights by unanimity, as well as with the consent of the European Parliament and on a proposal by one third of the member-states. Hungary has, in fact, already announced that it will veto any such proposal.
Hungary’s own attacks on judicial independence and other power centres rivalling the government of the Fidesz party have gone through over the past years with no more than informal complaint.7 Agata Gostynska-Jakubowska of the Centre for European Reform suggested in February that the harsher rhetoric of the commission towards Poland, as compared to Hungary, is due to the fact that Hungary’s Fidesz has remained in the centre-right European People’s Party, and gives this group its majority in the European Parliament, while Poland’s Law and Justice Party joined with the Tories (under David Cameron) and others in a far-right breakaway from the EPP, giving it less leverage than Fidesz.8
Nonetheless, The Economist comments that,
with Hungary committed to protecting Poland in the European Council, sanctions are unlikely. Germany and other member-states hesitate to press the case, for fear of triggering a nationalist backlash. So it is up to the Poles to defend the rule of law.9
In other words, though Law and Justice may be violating the formal law of the European Union, nothing can actually be done about it apart from political rhetoric from the commission - expressed in the form of legal proceedings, but without any real expectation of sanctions resulting; and political opposition in Poland itself.
There have, indeed, been large and angry demonstrations in Poland. But, as Andrzej Zorawski wrote in his letter in last week’s Weekly Worker, Poland’s left is severely weak, and all the liberal opposition can offer is to demonstrate, and to demonstrate again ... President Andrzej Duda has vetoed two of the bills, but it seems his opposition was not so much cast on principle as by the sheer transparency of the judicial purge - and of the new appointments scheme, as giving the public prosecutor the right to select judges. So he is likely to support the next version.
The Economist article just quoted tells us that, in spite of the protests, polls are still showing Law and Justice well ahead. Why?
Government supporters, and one academic writing in England, suggest that the scheme exploits real problems with the Polish judiciary. Issues about what ‘independence’ might mean are expressed by the Law and Justice-appointed ambassador to Jordan, who argues that the opposition merely expresses the sectional interest of the serving judiciary as a group, and comments that “the national council of the judiciary will become a truly independent institution, free from corporate interests of judiciary”.10
Anna Matczak writes: “Among the most frequently indicated problems in the Polish criminal justice system, the respondents pointed to the excessive time taken to complete court proceedings (48%), the complexity of court procedures (33%), judicial corruption (30%), courts’ leniency (23%) ...”11 She adds that, while “only 37% of respondents were against the idea of judges being selected by the parliament, 33% supported the change and 30% did not have an opinion”. On the website of Deutsche Welle (Germany’s equivalent of the BBC World Service) Astrid Prange argues that the judiciary reform expresses the political influence of a far-right version of Catholicism which is influential in Poland.12
The Economist has a larger point. It says that the former Civic Platform government, ousted in 2015 elections, “governed for eight largely successful years, but it underestimated a growing divide between haves and have-nots, or what locals term ‘Poland A’ and ‘Poland B’. The latter is more nationalist, more populist and less Europhile.” Liberals, including for this purpose social democrats and former Eurocommunists, are extraordinarily unwilling to face up to this elementary point.
The ‘rule of law’ depends on mass political support. But, if it radically prioritises the interests of the possessing classes, the result will be precisely the loss of the political support on which it depends. Communists hope that this support can be redirected towards radical and emancipatory democracy - but it can equally go to Catholic, Islamist, Hindutva, Brexiteer, Trumpian or whatever other forms of authoritarian demagogy. For the left to ally with a liberalism that reads ‘the rule of law’ as protecting property rights above all else is to guarantee the victory of authoritarian demagogy.
1. ‘European Commission launches infringement against Poland over measures affecting the judiciary’ - EC press release, Brussels, July 29.
2. ‘Poland’s president vetoes two proposed laws limiting courts’ independence’ New York Times July 24.
3.  UKSC 51.
4. SI 2013, No1893.
5. ‘Ministers vow to end employment tribunal fees after court defeat’ The Guardian July 26.
7. RD Kelemen, ‘The assault on Poland’s judiciary’ Foreign Affairs July 26.
10. ‘Reform of the judiciary in Poland’ Jordan Times July 26.
12. www.dw.com/en/how-the-catholic-church-ties-in-to-polands-judicial-reform/a-39809383, July 24.