The slow disintegration of the European Union accelerated this week as the EU Commission recommended disciplinary action against Poland under Article 7 of the Lisbon Treaty. The treaty, signed in 2007 and coming into force in 2009, gives the EU the power to discipline member states by imposing sanctions and suspending their voting rights. The move comes after Poland moved to enact reforms aimed at cleaning up the Polish judiciary. The Commission was humiliated as Hungary immediately pledged to veto any sanctions and Poland and the UK had a private summit to discuss a trade deal.
A few years ago a British judge called Starforth Hill, then 71, provoked outrage when he said a 9-year-old victim of sex crime was “not entirely an angel”, leading to adverse headlines and Parliamentary demands for his dismissal. His actions also prompted a healthy debate over retirement age for judges.
In Poland, there have been many complaints about slow court cases and corrupt judges. As part of a package of reforms, the Polish government have introduced a retirement age of 65 for men and 60 for women. The Polish Parliament will also appoint a greater proportion of the committee – the National Judiciary Council – that in turn selects judges.
In Britain, judges are appointed by a Judicial Appointments Commission. Half of the members are appointed by an interview panel in turn appointed by the Lord Chancellor (a government minister). The others are proposed by a council of judges and a council of tribunal judges. In the United States, federal judges are appointed on proposal by the President of the United States and subject to confirmation by the Senate.
In short, there is very little wrong in principle with Poland’s proposals except it upsets the EU elite because it makes the appointment of the judiciary more democratically accountable. The National Judiciary Council of Poland seems to have one judge on it – so less than Britain and more than the US. The retirement age seems a little low given the higher life expectancies and better health in Europe. In reality though, the proposals are far from the totalitarian nightmare readers would expect from strident BBC headlines, such as this one – “Poland judiciary reforms: Judge accuses government of coup”. Of course, in reality the only judges removed will be those over 65.
The problem faced by the EU is that it does not really like democracy but at the same time cannot abandon it. To square the circle, it has tried to make democratic power as illusory as possible – transferring power away from national governments. Another mechanism is to introduce “human rights” or other standards that transfer significant amounts of power to unelected bodies.
On every occasion that the EU has confronted the results from the ballot box directly, it has lost. A simple example is that of Austria. When the rightwing Freedom Party was included in a coalition government, the EU imposed sanctions. The result was humiliating failure for the EU and an increase in popularity for Austrian Nationalism.
In the case of Poland, the EU faces two catastrophic stumbling blocks. Firstly, Hungary has outright said it will veto any sanctions. Whilst Article 7 can be used to warn, “monitor” and essentially whine about states with a 4 / 5 majority of the European Council, unanimity is required to invoke any tangible punishment. Everyone except Poland would have to vote yes. It is likely, in fact that Hungary would not be alone.
The second stumbling block is that it will increase Euro-sceptic power across the continent – pushing Poland and other states towards considering their own membership of the EU. Poland and several other eastern European countries are increasingly unhappy with EU policy on migration. The easternmost states inevitably risk bearing the brunt of migration from non-EU states in the Middle East and Asia.
Poland has chosen to signal its approach to the EU’s ill-considered bullying by having a one-to-one summit with the British Prime Minister Theresa May and offering her public backing on a post Brexit trade deal. Short of projecting a giant, holographic middle finger onto the EU Parliament building, Poland could not be clearer about its contempt for the impotent threats.
I feel this is sad. The European Union had many advantages – trade harmonisation made us all richer and there has not been a serious war in Europe for 70 years. However, the EU is crumbling. The catastrophic European single currency project has put the region into a permanent economic crisis whilst at the same time the polity has become increasingly dictatorial. The final nail in the coffin has been a reckless approach to immigration and migration.
Europe does need some type of regional cooperation. Brexit will not remove Britain from Europe, only from a political institution. France and Germany will still be our neighbours and our trading partners. However, it seems increasingly clear that the vehicle for our trade and regional cooperation will not be the EU in its present form.