Israel Butler / Dec 2015
Viktor Orbán, prime minister of Hungary. Photo: Wikimedia Commons
Hungary’s Orbán administration has spent its five years in office eroding the constitution, undermining the independence of the judiciary, taking control over the media, attacking civil society and reforming electoral rules in its favour. Since 2012, Rajoy has carried out draconian reforms to Spain’s justice system. Now, Poland’s newly elected PiS government looks set to take the country in a similar direction. Other members of the EU club are slowly waking up to the fact that they cannot take adherence to the EU’s fundamental values for granted.
On 17 November, EU governments held their first ‘dialogue’ on the rule of law in the Union’s Council, under the Luxembourg presidency. The Treaty on European Union declares that the EU is ‘founded on’ the values of the rule of law, democracy and human rights. So it may come as a surprise that EU countries had never before sat around a table in Brussels and talked to each other about the state of human rights, democracy and the rule of law in their own countries.
It’s true that European governments talk to each other about human rights in other settings, for example, the Council of Europe and the UN. Sadly these bodies do not have the power to enforce their decisions, so countries often ignore what they say – which is probably the main reason governments don’t really mind talking about human rights in those organisations.
The same is not true of the EU, which has real powers that reach into national law and can even hit the public purse. And this is what makes it important that countries start talking about human rights in Brussels; because if the EU decides one of its members has a problem, that country will have to make things right.
It has taken sixty years for the EU’s member countries to take their first precarious baby step on human rights. European leaders are happy to go through each other’s budgets, scrutinise public spending and tell each other how their national economies should be structured. Why is it that governments are fine with involving each other in matters of such national importance, and yet talks on their rights records have been forbidden?
At the risk of sounding optimistic, it is because human rights still matter to European governments – especially to those who most fear criticism. Governments opposed to EU scrutiny recognise that being branded a rights violator is fatal to their reputation in a club that is ‘founded on’ these values. Although they do not believe that human rights of themselves are important, they believe that their rights reputation is. This is why Hungary’s Orbán has stepped back from some of his damaging reforms after warnings from the EU’s Commission – even though the latter has been too timid and unambitious. It is also why other countries, like Spain, have tried to keep their regressive reforms out of the media and largely off the EU’s radar.
For the Council’s first rule of law dialogue, the Luxembourg presidency tried to create a safe, non-judgemental environment where governments felt comfortable opening up to each other. Each country presented (on any aspect of the rule of law they chose) one example of where they are doing well, and one issue where they felt they are having problems, as well as how they planned to address that problem.
Insiders say talks went relatively well because governments were open and self-reflective. But member states did not go so far as to comment on each other’s rights records – the meeting was more a series of monologues than a true dialogue. And the range of issues governments raised was so broad (including migration, privacy, hate speech and terrorism) that there was little chance to get into detail.
The Luxembourg presidency may have gone as far as it could: it had the delicate task of loosening up the Council and breaking an old taboo. The 2016 Dutch presidency can capitalise on a comfortable first dialogue to take things further. First, it should make more time available for talks, otherwise discussions will remain superficial. Second, the presidency should avoid a succession of monologues and encourage governments to comment on each other’s problems. Third, governments should not be totally free to pick which topics to speak about. The presidency should set a theme and use the recommendations the UN and Council of Europe have already made to member states as a starting point for discussions. This would prevent governments picking easy issues to avoid criticism and allow talks to get into more detail. Fourth, governments should be prepared to accept recommendations from their peers and report back to the Council on progress.
These steps could turn the dialogue into a process that shores up EU values by inducing governments to call each other to account for rights violations. If the Council doesn’t put a break on rights-flouting governments, they will inspire followers. The European Commission’s failure to use its rule of law ‘framework’ to call Hungary’s government to account is likely to have emboldened Poland’s Orbán-admiring new PiS government to celebrate their election victory with attacks on the constitutional tribunal. If the trend towards ‘illiberal democracy’ is allowed to gain momentum it will become too difficult to halt.
