Poland steps up its legal fight against Europe

Poland's legal wrangles with Europe show no sign of ending. Back in September, the Polish Constitutional Tribunal determined that some parts of EU law might be contrary to the country's constitution. Now the tribunal has lit another firework: doing the same in respect of the European Convention on Human Rights (the ECHR).

Is this just another round in the war between the European elite and the ruling political party, the PiS (which is cordially detested in both Brussels and Strasbourg)? You'd be forgiven for thinking so. Yet this latest wrangle is much more significant, since it opens up an entirely new front. The ECHR is separate from the EU; it and the Human Rights Court are under the control of the 47 member States of the Council of Europe, which consists of essentially every European country, inside or outside the EU.

This latest bust-up kicked off in May, when the Human Rights Court in Strasbourg ruled against Poland. It upheld a claim that the Constitutional Tribunal was not an impartial tribunal, because its judicial appointment process favoured those supporting the policies of the ruling political party PiS. The Polish Tribunal’s response, delivered in recent days, took the opposing view. It said that giving effect to the Strasbourg decision would clash with the provisions of the Polish constitution stating how its members were to be appointed; and that in Poland any conflict between the ECHR and the Constitution had to be resolved in favour of the latter.

Until now, human rights scepticism has been almost a taboo subject. Even though there are numerous instances where the ECHR very arguably goes much too far in its remit, until recently it has been politically impermissible to suggest this, or to mention the ultimate sanction of leaving the ECHR entirely (which any state can do on six months’ notice). Theresa May floated the idea of a UK exit in 2016 and had quickly to drop it like a hot potato. Priti Patel and some Red Wall Tories are said privately to sympathise with reviving the idea; but discussion remains discreet, and current plans to review UK human rights law carefully leave the ECHR scheme essentially in force.

Will this now change? Possibly. The politics of Poland’s pushback is astute. Poles overwhelmingly favour EU membership (by all accounts over 80 per cent support it), so any fight against Brussels has to be carried on with finesse. 

By contrast, the ECHR has no equivalent spontaneous support. What's more, while the present dispute might look esoteric, there are a number of subjects where the Poles, instinctively insubordinate since the founding of the Third Republic in 1989, may well back a stand by their government against Strasbourg. Most obvious right now is their firm closure of their border with Belarus in the interests of immigration control, which may well fall foul of Strasbourg’s rules. If another state, such as Hungary (which faces similar issues at its border with Croatia) were to join Poland in a border crackdown, the stage may well be set for an interesting contest. For the first time human rights scepticism, and the possibility of questioning the present ECHR alignment, would become matters for open argument. Some would say: about time, too.

Of course, the response to all this from the great and the good in Europe has been entirely negative: in essence, a scandalised characterisation of Poland as a democratic backslider and a dangerous threat to the rule of law, not only in the EU but now more widely.

Is this characterisation fair? There is some mileage in these attacks. The Tribunal judges in Warsaw do predominantly support the nationalist PiS line; it seems clear that, in so far as Poland fails to obey Strasbourg, it is technically in breach of international law (and hence the rule of law) in the shape of the ECHR. But perspective matters. Disobedience of Strasbourg judgments is no big deal; after all, for a long time the UK deliberately ignored a judgment on prisoners’ voting rights that it saw as treading outrageously on the prerogatives of elected politicians, without disastrous results. 

In Poland's case, even if the country has politicised judges, the European elite should perhaps accept an element of motes and beams. After all, human rights sceptics supportive of states’ rights are not exactly common in Strasbourg. 

Perhaps then the attacks on Poland as a threat to the rule of law are at the very least overblown. One could even go further and suggest that Poland has not so much undermined the rule of law as supported it. A national constitution should not lightly be construed as allowing its own subordination to an international agreement entered into by the government which it establishes; and there being no indication that the Polish constitution does any such thing, one could say Poland had acted with complete integrity in giving effect to it. 

But even if you don’t go this far, most of the 'rule of law' complaints are little more than Euro-patrician regrets. These are aimed at the loss of the comfortable accommodation under which power in Europe was gently swept into the arms of benevolent institutions like the EU and the ECHR, where national voters could be kept conveniently at arms’ length.