Judges in the cross hairs

I am writing this before the potential fireworks in parliament and the courts regarding the prorogation of parliament. I suspect that our judges may be in for another bout of ‘Enemies of the people’, should they decide in a way that certain people and newspapers believe is wrong. 

Over the summer, Lord Dyson, the former master of the rolls, published his autobiography, ‘A Judge’s Journey’. He reported that the lord chancellor at the time of the original ‘Enemies of the people’ fuss, Liz Truss, now the trade secretary, ‘was more concerned to avoid upsetting the media than to perform her statutory duty of protecting the independence of the judiciary’. We will see, if the need arises, whether the current postholder, Robert Buckland, rises to his duty.

These are rather mild events compared to what has been happening in Poland over the summer – although, given the unpredictability of Brexit, we may yet become world leaders in judicial news. Poland is an example of what can happen when the judiciary becomes a political football.

Poland’s grand summer scandal, called Piebak, began when evidence emerged of a campaign of alleged harassment, intimidation and blackmail coordinated from within the justice ministry against judges resisting governmental efforts to take control of the judiciary.

A file containing unsubstantiated claims over the private life of a senior judge (and government critic) was widely circulated. Separately, the president of the Supreme Court, who has been another thorn in the side of the government, received postcards saying ‘F*** off’ (or ‘Get the f*** out’ – the English translation of the original Polish varies). There was evidence that a recently appointed member of the Supreme Court’s disciplinary branch had originated the idea of the postcards.

As a result of evidence published online, the deputy minister of justice immediately resigned. The next day, his assistant, also a judge, was dismissed when evidence emerged that he had written about one of the judges being attacked: ‘He really needs to be fu**ed up badly’.

The government – which is facing a general election on 13 0ctober – has tried to play down the scandal. Their mantra is: it is just an argument among judges. Part of the problem, though, lies in changes that the government has already introduced, which is that the justice minister is also the prosecutor general, responsible for bringing any prosecutions for wrongdoing in this matter.

The European Commission has a long history of involvement in the Polish government’s disregard for the rule of law, on the grounds that such disregard disrupts the legal order of the EU.

For instance, the Commission won a famous case in June of this year in the Court of Justice of the European Union (CJEU) against the lowering of the retirement age of Polish judges. Given that the President of the Republic was handed the discretion as to which judges should have their periods in office extended, the provision was held to breach Article 19.1 of the EU treaty (which states that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’) - Case C‑619/18.

There is also a judgement from last year, which did not involve the Commission, permitting a member state to refuse to surrender a requested person under the European Arrest Warrant, following Poland’s changes to its judiciary (Case C-216/18 PPU).

This summer, the Commission published a report called ‘Strengthening the rule of law within the Union: A blueprint for action’ (Brussels, 17.7.2019 COM(2019) 343 final). It provides an explanation for the EU’s role in this field, and also lists proposed future actions.

Of course, the EU is in a transitional phase between parliaments and Commissions. However, the incoming president of the European Commission, Ursula van der Leyen, has published the political guidelines of her incoming Commission, and the rule of law features, even if only after climate change, the economy and the impact of technology.

In the rule of law section, she cites the recent CJEU judgements frequently, almost triumphantly, and says she intends to focus on tighter enforcement, including what I understand to be a financial threat to the wrongdoers: ‘I stand by the proposal to make the rule of law an integral part of the next Multiannual Financial Framework.’

It will be interesting to see how strongly she supports enforcement in practice, given that her surprise appointment happened in part because the Visegrad countries, among which are the two rule of law troublemakers of Poland and Hungary, refused to support the candidates who were placed above her, and who had taken a tough line against them in the past, so allowing her to come through successfully.

To return to ourselves: none of us wants to see a Polish-style brawl develop here. Let us hope our judges come through the coming days unscathed.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council