Backwards march

David Clark

As a consequence of the Brexit referendum and its aftermath, the UK has embarked on a path of self-marginalisation at precisely the moment when its voice as a traditional bastion of European liberalism is needed most. Boris Johnson pleads that we will remain a European power, but the simple truth is that we are about to vacate our seat in the continent’s most important decision-making bodies. The inevitable result is that our influence will decline and the balance of European politics will be altered in ways that threaten to harm our interests.

Among the trends that ought to concern us most is the resurgence of authoritarianism as a major force in European affairs for the first time since the end of the cold war. Propelled by the aftershocks of the global financial crisis, fear of social change and the rising pressures of migration, new political parties have succeeded in mobilising voters with appeals to economic populism, social conservatism, nationalism and xenophobia. Often these parties base their programmes on an explicit rejection of the liberal democratic values that are supposed to unite countries belonging to the EU, the Organisation of Security and Cooperation in Europe (OSCE) and the Council of Europe.

This phenomenon has become apparent in almost all European countries, but it is in the new democracies of central and eastern Europe that weak institutions and the legacy of communism have combined to give authoritarian populism a real foothold. This change has happened with alarming speed. It is only a decade since these countries were admitted to the EU on the assumption that they had completed their democratic transitions. Yet instead of helping to consolidate the gains of the post-communist era, accession has been followed in some cases by a clear regression from democratic standards.

The political conditions of EU membership were set out in the ‘Copenhagen criteria’ agreed by the European council in 1993. These stated that applicant states would need to show that they had “achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”. Whereas all of the new member states were deemed to have met these conditions at the point of accession in 2004 and 2007, there is little doubt that several of them would fail if they were assessed objectively on the same basis today.

The problem is particularly acute in relation to Romania, Poland and Hungary. In the latter countries, electoral victories for parties of the authoritarian right have been followed by efforts to restrict political pluralism. In Romania, the threat to human rights and the rule of law comes from a dysfunctional system that leaves the organs of the state open to partisan manipulation.

In all three cases there has been a failure to maintain a proper separation of powers between the judicial, legislative and executive branches of the state.

The authoritarian trend is most strongly represented in Hungary, where rightwing prime minister, Viktor Orban, has introduced a style of government that bears more than a passing resemblance to the one pioneered in Russia by Vladimir Putin. Elected in 2010 with a two-thirds majority in parliament, Orban immediately set out to neuter the country’s constitutional court as the most significant potential limit on his power. The rules were changed to enable the governing Fidesz party to appoint judges without the agreement of the opposition and the court’s membership was expanded from 11 to 15, allowing Orban to pack it with his own nominees. By April 2013 they constituted a majority and the court’s behaviour changed dramatically. A survey produced by Hungarian human rights organisations shows that in the two years before government appointees constituted a majority, all of the court’s rulings went against it. In the year that followed, 77 per cent of rulings went its way.

Orban’s next target was the media. A powerful new media regulator was created composed exclusively of politically appointed officials, with the authority to grant broadcasting licences and levy fines on media outlets deemed guilty of unbalanced reporting. Coverage on the state broadcaster is now heavily slanted towards the government while the major private outlets are increasingly under the control of business groups close to Fidesz. State advertising expenditure – traditionally a major source of media revenue in Hungary – is used to punish criticism and reward loyalty. Critical journalists have been removed from their posts while others complain that self-censorship is now rife.

The assault on democracy has reached deep into Hungarian society. In a tactic borrowed directly from Putin’s Russia, Orban has attacked critical civil society groups as agents of foreign influence and in 2014 police raided the offices of the Ökotárs Foundation, an organization that disburses funds to hundreds of NGOs on behalf of the Norwegian government. The Hungarian government had been demanding oversight of the disbursements. Electoral laws have also been changed, with rules on party registration and constituency boundaries redrawn to favour the ruling party. The OSCE declared Hungary’s 2014 parliamentary elections, which returned Orban to office, as free but not fair. As the final report of its election monitors stated: “The main governing party enjoyed an undue advantage because of restrictive campaign regulations, biased media coverage and campaign activities that blurred the separation between political party and the state.”

For an EU member state to receive such a negative assessment of its democratic standards is unprecedented, all the more so since the deficiencies it highlights cannot be put down to political immaturity or temporary lapses of judgement. The Hungarian model is a conscious choice based on a repudiation of liberal democratic principles. Orban has spoken admiringly of authoritarian regimes in Russia, China and Singapore as examples to be followed and declared his ambition to create “an illiberal new state based on national foundations”. A major element of this project is to end the separation of powers. As Orban said in an interview two years ago: “Checks and balances is a US invention that for some reason of intellectual mediocrity Europe decided to adopt and use in European politics.” These ideas represent a fundamental challenge to the values underpinning post-cold war order in Europe.

Until recently it was possible to dismiss Orban’s Hungary as an aberration. That changed last year with the victory in presidential and then parliamentary elections of Poland’s ultra-conservative Law and Justice party (PiS). Eastern Europe’s largest and most strategically important country is now following the authoritarian precedent established in Hungary. At the end of 2015 the Polish parliament hastily passed amendments to national media law, giving the government direct control over state-owned media outlets. It also curtailed the power of the national broadcast regulator, which had been strongly criticised by media interests close to PiS. A new National Media Council, appointed by parliament and the president, was established in July. In the space of a year, Poland has slumped from 18th to 47th place in the World Press Freedom Index.

Again, the separation of powers is under attack with measures designed to impede the work of the constitutional court. The appointment of five replacement judges approved by the outgoing government was annulled and five new PiS nominees installed in their place. A new rule has been passed obliging the court to consider cases in order of presentation. The large backlog of cases means that the government is effectively able to act without judicial scrutiny for the foreseeable future. In a further assault on the rule of law, the minister of justice has been given sweeping new powers to control public prosecutions and release information uncovered during investigations to the media. As one PiS MP told parliament to the ovation of his colleagues: “The good of the nation is above the law.”

The authoritarian revival and central and eastern Europe takes more than one form. In Romania it arises from the fractured and contested nature of the political landscape rather than the ability of one party to monopolise power. Opposing factions of the post-communist elite have found it impossible to reach a consensus about how the country should be governed, with the result that public institutions and the rules of democracy have often become instruments of bitter political warfare. The socialist government of Victor Ponta that took power in 2012 unsuccessfully attempted to impeach its centre-right opponent, President Basescu, and was censured by the European Commission for trying to circumvent the constitution in the process.

The criminal justice system has become a favoured means of settling scores with political rivals and media owners. Politicians and the intelligence services often exert improper influence over prosecutors and judges to that end. In May 2014, Ponta announced the forthcoming arrest of Dan Adamescu, owner of the main centre-right newspaper, on charges of corruption, signalling both political motive and collusion between prosecutors and the executive. In a case that featured countless violations of legal standards that began when the judge in a pre-trial hearing denied bail on the grounds that the accused refused to admit his guilt, Adamescu was convicted and sentenced to more than four years in prison. Ejected from power last year, Ponta and several of his party colleagues now find that they in turn have become targets of investigation.

The extent to which Romania is departing from European norms is poorly recognised because so much of it is disguised under the congenial cloak of ‘anti-corruption’. Romania’s western partners want to believe that it is making progress in tackling its biggest problem and are reluctant to see an increase in prosecutions as a sign of anything other than success. Yet a legal system that produces conviction rates in excess of 90 per cent is one that clearly isn’t working fairly in the interests of justice. It is one in which corners are being cut to produce pre-determined results. This includes mass surveillance, the pre-trial leaking of evidence to the media and the use of other intimidatory tactics. Judges who have angered prosecutors by acquitting defendants have even found themselves targeted with investigation. Romania’s anti-corruption drive has become tainted by authoritarian methods that pose a serious threat to the rule of law.

So where does this leave the UK in the context of Brexit? Those with a poor grasp of history will console themselves that we will soon be well out of it, as an ex-member of the EU. But we don’t have to look too far back into our past to appreciate how complacent this isolationist sentiment is. As Winston Churchill remarked on the eve of the first world war: “Europe is where the weather comes from”. Every time we have fallen for the idea that we can afford to remain aloof from European affairs we have paid the price at a later stage. A Europe lurching back towards authoritarianism would become a serious risk to our prosperity and security, so acting to support democracy across the continent should remain a strategic priority whether we are in the EU or not.

As Theresa May has said, the UK will continue to accept the rights and responsibilities of EU membership until Brexit is completed. That means taking the threat to democratic standards seriously and not allowing the demands of our Brexit negotiations to inhibit us from making a forceful stand in their defence. The EU has effective tools for addressing the problem of resurgent authoritarianism at its disposal if it chooses to use them. The problem so far has been an absence of political will. The fact that the UK is scheduled to leave the EU within the next five years makes it all the more important that we add our voice to those calling for firm action while we still have the opportunity.

Article 7 of the EU treaty establishes two ways of dealing with member states that flout their democratic commitments. An alert procedure allows the council of ministers to identify an emerging risk and address recommendations to the member state in question. A sanctions procedure empowers the Council of Ministers to suspend the voting rights of any member state deemed guilty of “a serious and persistent breach” of democratic standards. Additionally, the European commission has established a Rule of Law Mechanism that allows it to monitor developments of concern and make recommendations accordingly. So far only the last of these instruments has been used, in relation to Poland. On the basis of developments so far, the UK should be calling for both Poland and Hungary to be subjected to the alert procedure, while Romania should be considered under the commission’s Rule of Law Mechanism.

Beyond Brexit, the UK will remain a full member of other international organisations with democratic criteria that bind their European members, including NATO, the OSCE and the Council of Europe. The opportunities these present should be used to the full. The Council of Europe, in particular, has a broad remit to uphold human rights and democracy, along with an extensive array of instruments for holding member states to account. These include a Commissioner for Human Rights and the Commission for Democracy Through Law (the so-called Venice Commission), both of which have been more vocal in their criticism of Orban’s Hungary than most EU leaders.

There are also important steps that the UK can take unilaterally. One of these concerns the future of the European arrest warrant (EAW). The case for reform of the EAW would be overwhelming even if we were staying in the EU because the assumption on which it is based – that all EU countries have fair legal systems – is self-evidently wrong, leaving the system wide open to abuse. The problem has been highlighted by two recent cases involving Romania. The first concerns Alexander Adamescu, son of Dan Adamescu, who has become the target of an EAW request here in the UK where he lives. Adamescu angered the Romanian authorities by repeatedly challenging their treatment of his father, so they orchestrated his arrest as he was about to address a public meeting in London in June. No evidence of criminal wrongdoing has been presented and none is needed under the EAW.

The second case involves Stuart Ramsay, a Sky News journalist who ran a report about gun running in Romania in August. Officials in Bucharest strongly disputed its findings, but instead of limiting themselves to a formal denial, they decided to charge Ramsay and his colleagues with the crime of “spreading false information”. Romania’s Directorate for Combatting Terrorism and Organised Crime has approached the UK with a formal request for legal assistance. An EAW may follow, but even if it doesn’t, the message is clear: journalists expressing opinions that incur the disapproval of the Romanian state will need to watch their backs.

The fact that the EAW mechanism can be used by foreign governments to pursue political grudges and suppress free speech on British soil shows that a successor agreement is needed that will include stronger human rights safeguards.

British and other European leaders have been far too slow in recognising and responding to the resurgence of authoritarian politics in their own continent. A threat that would have been easier to contain if firm and early action had been taken against Viktor Orban in Hungary has been allowed to spread. The problem will continue to grow as long as it is ignored. Brexit adds to these difficulties because it removes a traditionally strong advocate of liberal democracy from the most important centres of European decision-making. Developing a new strategy of European engagement to compensate for that loss is among the most pressing foreign policy challenges Britain now faces.

This article won a Jenny Jeger prize for shorter writing 2017

 

1 comment:

  1. Jonathan

    I’d have thought an ongoing role scrutinising states’ ongoing compliance with the basic rule of law and accepted constitutional norms, more the role of the Venice Commission, than of a free trade and mutual cooperation association, the EU. It’s a bit perplexing watching FS try to defend EU membership whilst objecting to the market freedoms which lie at the core of the treaties and which seem to serve the UK economy so well. And it’s difficult to see how UK membership is really key to that controversial and highly risky EU role of constitutional policeman, and in turn difficult to see how it gives the UK a duty to be part of a free trade union.

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This article originally appeared in the Autumn 2016 issue of the Fabian Review.