It should be a moment when the values of the European Enlightenment, embodied triumphantly in the astonishing capacity to deliver anti-Covid vaccines within 12 months, should be riding high. “To dare to know”, the great maxim of Emmanuel Kant that delivers such brilliant science, is of a piece with principles of tolerating difference and good government founded on the separation of powers between the executive, legislative and judiciary. These underpin the rule of law and are foundational preconditions for EU membership embodied in its treaties. The British government, for its part, requires applicants for citizenship to know that the rule of law, and what stands behind it, is a supreme British value. Yet everywhere these Enlightenment principles are being challenged.
So while the justice secretary, Dominic Raab, ponders a freedom-curbing override of British judicial independence by equipping ministers with the power to change judges’ verdicts if they consider them “incorrect”, the EU finds itself facing a real crisis over the rule of law. The Polish government is actually doing what Raab, at least for the moment, is only contemplating.
In a case brought by its prime minister, earlier this month Poland’s supreme court ruled that legal challenges, based on EU law incorporated in EU treaties, would be constitutionally inadmissible. These include challenges to the government disciplining judges for “incorrect’ rulings and limiting their independence, so allowing policies that indulge anti-gay declarations, deny climate change or limit press freedom. Unsurprisingly, a court packed by the prime minister’s placemen and women found for him: EU law was “not compatible” with Poland’s constitution.
The Polish government, run by the extreme social conservative Law and Justice party, must be unconstrained from doing what it wants, so that if a third of Poland’s towns have issued proclamations declaring themselves “LGBT ideology-free zones”, nothing can be done. In vain might the EU president, Ursula von der Leyen, declare that such zones are “humanity-free”, that they have no place in a “union of equality”. She is powerless to equip Polish citizens with the legal rights that citizens have in other EU member states to challenge their government.
Poland may have signed EU treaties enshrining principles dedicated to the separation of powers and the rule of law, but if they are declared constitutionally invalid, Polish citizens become second-class members of the EU. British citizens will be similarly disempowered if Raab and Boris Johnson decide to create mechanisms to discipline judges for “incorrect” rulings, but there is no EU to attempt our rescue.
On Poland, the EU, after years of prevarication and weak threats, is at last 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”, a view backed by the European parliament and outspokenly by the French, Dutch and Belgian governments. Last Wednesday, the European court of justice (ECJ) imposed a daily fine of €1m (£845,000) on the Polish supreme court for not disbanding its disciplinary chamber. Given that the same supreme court has ruled that the chamber is legal, no compromise is in sight. Nor should it be. This is a battle the EU has to win.
It is withholding €36bn of post-pandemic funding, Poland’s share of the EU recovery fund. Prime minister Mateusz Morawiecki is unyielding. There is no question of Poland leaving the EU, he says. He knows Polish support for the EU is sky high (viewed, as it is, as a source of prosperity and bulwark against Russia), but he threatens to paralyse the EU’s operations. Poland will leave the EU’s green new deal. It will keep its coal mines and coal-burning plants open. It will veto routine EU legislation. It will challenge the way Germany appoints its judges. If agreements such as the EU arrest warrant become inoperable, so be it. The ECJ must be bested.
In all this, Morawiecki has one supporter in Europe – Boris Johnson, who on Friday took time to brief him by phone on how, echoing Poland’s experience, Britain wanted to cease any jurisdiction of the ECJ in Northern Ireland. Poland’s fight was Britain’s fight against the Northern Ireland protocol. Britain is making common cause with Poland – for national constitutional autonomy against the imperial ambitions of Brussels. Perhaps, hopes Johnson, the fear of “Polexit” may make the EU give way, abandon its “bureaucratic” defence of its legal order and open the way for a famous victory in Northern Ireland.
Johnson misjudges both EU unanimity and its passion for Enlightenment values. The fact that his new ally deplores “LGBT ideology”, denies climate change, wants to abolish abortion, rails against press freedom, holds racist views on immigration and is sympathetic to anti-vaxxers should give him pause. More practically, he should know Morawiecki is fighting for his political life. His base in hyper-conservative Catholic south-eastern Poland is shrinking as the liberal cities grow. There are growing pro-EU protests on the streets. The evident disaster of Brexit has virtually eliminated the anti-EU cause, so any threat to leave it would be economic and political suicide.
Johnson is backing a losing horse. The ultra-rightwing project of curtailing Enlightenment liberties to enact hyper-conservative legislation and override treaty obligations may seem attractive to a vocal base. But it’s being challenged – there as here.
The EU will hold its ground. In Britain, it was telling that the Office for Budget Responsibility last week declared that Brexit would cost the country twice as much permanent lost output and prosperity as Covid, heralding a new era of a virtually growthless economy, so hard is Brexit is hitting our trade. But much more importantly, Britain is a quintessentially Enlightenment country; on this, the citizen application test is right.
We should be standing unflinchingly with the best in Europe, not conniving in the trashing of our core values and beliefs. This is not where the majority of British are. Hyper-conservatism is not a vote winner and if that is what Brexit’s authors intend it to become, ultimately it will be reversed.