Constitution

“It is a general popular error to suppose the loudest complainers for the public to be the most anxious for its welfare.” The words of Edmund Burke, as relevant this week as ever before when in the UK the judgment of the High Court on how the government should trigger article 50 of the TEU to give notice of the UK’s intention to leave the EU was greeted by some politicians and newspapers with uncontrolled outrage. With headlines reminiscent of Nazi Germany, and not unknown more recently in Poland, the three judges were denounced as enemies of the people who were setting aside the referendum result and frustrating the will of the people.

But, of course, they were doing no such thing. They were upholding a well-known principle of the constitution on the use of the prerogative power of the Crown, and said nothing which neither overturned the result of June’s referendum nor impeded the serving of the notice under article 50. Facts have never stood in the way of the arguments (or rantings) of the soi-disant tribunes of the people, but the display of wilful ignorance by those who should know better, and the lukewarm statements of the prime minister and lord chancellor in support of judicial independence, fall some way between disgraceful and chilling. The lord chancellor is not a lawyer – one of the regrettable results of Tony’s Blair’s constitutional vandalism – but she did once write an amusing book on punctuation.

Be that as it may, the Polish constitution has also been in the news this week – not that it has really left it since Law and Justice (PiS) came to power a year ago. Another shot was fired on the long running battle over the Constitutional Tribunal, when the Polish government letter to the European Commission saying it does not see any possibility legally to implement the Commission’s recommendations on the rule of law.

The letter sent last week, a copy of which was obtained by the PAP news agency, states that acting on the recommendations by the European Commission would “result in authorities breaching the constitution” and that “Poland sees no legal possibility” of implementing them. The Commission had in July urged the government to respect the Tribunal’s rulings and issued a set of recommendations with which it gave the government three months to comply.

In response, the Polish government wrote that when allegations of posing a “systemic threat to the rule of law” are directed towards an EU member state, that country “has the right to expect the institutions formulating it to fulfill the obligation of particular diligence and care”. Further the letter added that while hoping for “an objective and constructive dialogue with the European Commission”, Poland “regrets that these principles were not complied with while preparing the recommendations”. The Polish government has concluded that the Commission’s recommendations from July are groundless while emphasizing that the continuing political dispute over the rules governing the work of the Constitutional Tribunal cannot form the basis for claiming that there is a systemic threat to the rule of law in Poland.

Fortunately the British government, unlike the current Polish government, is not in the business of ignoring judgments with which it disagrees and has instead appealed to the Supreme Court which will hear the appeal early next month. I suspect the government will lose unless the Supreme Court takes a wholly different view from the High Court on the legal status of the rights granted under the European Communities Act 1972 or, put simply, are they actually rights granted by statute or simply rights which have no separate existence other than under the treaties that grant them.

One point is clear. Criticizing a judgment is fine (better if one’s criticism is based on having read or at least understood the basis of the judgment) and a free press is essential. But personal attacks and appealing to mob rule on the basis of willful ignorance is not – therein lies the road to tyranny and ruin. For PiS to compose an ever growing list of enemies of the people, or the wrong sort of Pole, or traitors, or whatever is bad enough, but this has no place in the UK, blessed as it with a constitution which is a thing beauty, a guarantor of liberty.

There is something of the 1930s about all these meretricious appeals to the people and, as Burke reminds us, those who dint know history are destine to repeat it.

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