Cassandra Voices

Tag: Mandatory Hotel Quarantines

  • Covid-19: A New Irish Social Contract?

    Surveying the demise of the Celtic Tiger, Fintan O’Toole devoted an opening essay ‘‘Do you know what a republic is?’ The Adventure and Misadventure of an Idea’ in Up the Republic! Towards a New Ireland (2012) to assessing the health of the Irish Republic. He considered its vitality based on the presence, or otherwise, of three indicators: Non-Domination; Mixed Government and tolerance of Obstreperous Citizens.

    These features of a healthy republic, he wrote, diverge from a narrow form of republicanism associated with Rousseau ‘which argues for the notion of a single, sovereign popular will: ‘the People’ effectively taking the place of the king in a monarchy.’ Up to that point in Ireland, O’Toole argued, this latter, narrow version had predominated, which he associated ‘in vulgar terms’ with appeals being made to ‘pull on the green jersey’’; and where ‘an idea of accountability implicit in mixed government is ditched.’

    ‘For most of the history of the state’, O’Toole concluded that the state ‘failed miserably in the basic task of ensuring citizens were free from subjection to the arbitrary will of others.’[i]

    Now, as Ireland slowly unwinds from an interminable lockdown that tendency of Irish governments to pull on the green jersey, avoid accountability, reject obstreperousness and a conspicuous failure to ensure that citizens are free from the subjection to the arbitrary will of others, is evident once again. This regression has arrived especially through what O’Toole himself described on April 28th, 2020 as the ‘top-down, command-and-control approach’ of the National Public Health Emergency Team (NPHET), which the elected government has deferred to throughout most of the pandemic.

    Times of War

    The COVID-19 pandemic is likely to reshape the Irish political landscape, eroding foundational certainties of left and right. When the dust settles new formations may crawl from the debris, with democracy itself in peril, as the coalition government chooses to extend emergency powers until November, while other countries such as Denmark aim for a swift return to normality.

    In terms of the pandemic’s wide-ranging impact, there are parallels with the outbreak of a global war. As Hannah Arendt put it: ‘The days before and the days after the first World War are separated not like the end of the an old and the beginning of a new period, but like the day before and the day after an explosion.’[ii]

    Placing billions under lockdown around the world had a shuddering effect on daily routines, altering intimate exchanges and gestures, besides radically reducing the ambit of daily peregrinations. It’s a very modern form of trench warfare that confined most of us to within 5km of barracks – spilling out invective on (anti-)social media.

    In Ireland, with the advent of bigger government, there is a confidence among some on the left that their time has arrived, and that a relatively youthful population will vanquish age-old privileges of wealth and caste through a permanently enlarged state.

    However, as Eric Hobsbawm records, one reason Engels (and even the late Marx) ‘began to turn away from calculations that the international war might be an instrument of revolution was the discovery that it would lead to ‘the recrudescence of chauvinism in all countries’ which would serve the ruling classes.’[iii]

    Similarly, nationalism chauvinism – ‘excessive or prejudiced support for one’s own cause, group, or sex’ – has been witnessed throughout the pandemic in Ireland. This is perhaps unsurprising as, historically, infectious diseases have given rise to, and fed, plagues of prejudice and outright racism; the diseased ‘other’ at the gates of the city is a recurring theme. Ruling classes have often put forward strongman rulers to harness this xenophobic sentiment.

    Since March 2020 we have poured over spreadsheets of daily deaths, infections, testing rates and vaccine roll outs to determine how ‘we’ are doing relative to ‘them.’ In Ireland we tend to measure achievements and failures against the noisy neighbour next door, whose boorish leader has somehow managed to transform one of the world’s highest death tolls per capita from Covid-19 into a great British victory pageant, through a rapid vaccine rollout. Boris now looks unassailable, notwithstanding Brexit storm clouds, Dominic’s revenge, Indian variants; and just the suspicion that the vaccine may not prove quite the panacea it seems now in winter 2022. Time will tell.

    Indeed, the narrative arc of Boris Johnson’s response to the pandemic should serve as a warning to the Irish left that ruling classes can easily steal their best clothes. In this respect, Johnson operated with far greater flexibility than Donald Trump, shifting from a ‘take on the chin’ herd immunity approach in March, 2020 to championing what he would have previously decried as a ‘nanny state’ lockdown. He and his chumocracy used the pandemic as a pretext for introducing draconian legislation against protest and civil disobedience, apparently aimed at movements such as Extinction Rebellion.

    Recovery Position

    Similarly, though less dramatically, Leo Varadkar resuscitated his political career after Fine Gael’s disastrous performance in General Election 2020, donning proverbial scrubs for the initial phase of the pandemic. Having identified himself with “early-rising” middle class voters Varadkar was smart enough to realise that his preferred Thatcherite policy of reliance on an Invisible Hand of market forces could lead to a public health disaster during a pandemic.

    Since entering the coalition, Fine Gael Ministers have emphasised a law and order approach – Simon ‘TikTok’ Harris was quick off the blocks denouncing as ‘disgusting, grotesque and obscene’ a comparatively unobstreperous anti-lockdown protest in Dublin by European standards. Fine Gael have also allowed Fianna Fail to act as a mudguard for a failing system of public health: Ireland’s health expenditure is the third highest in the EU, yet we have only 5 ICU beds per 100,000, compared to 35 in Germany and 28 in Austria.

    Fine Gael represents itself as a centrist party, placing emphasis on its belated support for marriage equality and abortion referendums, which obscures from a failure in government to address structural inequalities and ongoing environmental damage. Replacing James Reilly as Minister for Health in 2015 Leo Varadkar promptly abandoned universal health insurance (UHI).

    After becoming leader of Fine Gael and Taoiseach, Leo Varadkar claimed he would represent thrusting early risers – tantamount to saying he would not alter structural inequalities that are most apparent in access to housing. In combination with Fianna Fail, Fine Gael has represented the dominant interest of large property owners, indifferent to whether their wealth is maintained via independent corporate entities, the state, or as in Ireland’s case increasingly, a corporate-state nexus.

    Simple distinctions of left and right are often misleading. Thus, when considering the virtues, or otherwise, of big government it should be clear that administrative levers and patronage may drive inequality; most obviously through mind-boggling salaries, such as the €420k paid to the Director General of a dysfunctional HSE, Paul Reid – ironically a former Workers’ Party activist. Reid has no medical or scientific qualifications, and previously acted as chief executive of Fingal County Council.

    Moreover, left-wing politicians and their supporters are often drawn from higher income groups; a tendency that within Fine Gael circles used to be referred to as noblesse oblige – accompanied by the obligatory glass of fine Cognac – of which the Just Society was the apotheosis. But a left-wing identity may be superficial, as the distribution of state largesse, or patronage, apart from being expressed in high public sector salaries, often benefits established professional elites of lawyers, academics and indeed doctors.

    Leprechaun Economics

    Big government patronage motors along fine in Ireland for all concerned as long as the tech and pharma sectors do the heavy economic lifting. This is the ‘Leprechaun Economics’ that Paul Krugman referred to dismissively. But now the Biden administration’s taxation proposed changes to the global tax system may make the current Irish model unworkable. The ECB is also likely to desist eventually from quantitative easing, with inflation looming.

    Renewed fiscal rectitude and the prospect of multinationals leaving a perpetually unaffordable capital city for workers, will place increasing reliance on those indigenous SMEs that have endured the Crash of 2008, and the unprecedented challenges of the pandemic. Yet whole sectors have been furloughed for over a year, with some such as events and tourism wondering whether they have a future at all. The Central Bank has warned that one in four firms could fail when pandemic payments cease.

    It should be unsurprising, therefore, for a small businessperson living from transaction to transaction to be wary of parties promising higher taxation on the left, and instead be attracted to politicians on the right, or even far-right, that are acquainted with the language of commerce, however superficial this may be, in the case of Leo Varadkar at least, whose concern for SMEs has disappeared after his supportive comments proved unpopular last October.

    An objective for a progressive left should be to attract support from an increasingly marginalised mercantile class, emphasising that a favourable environment for entrepreneurship, as in Scandinavia, is enabled by efficient public service, including a one-tier, functioning health system. The left can argue that leaving healthcare to market forces – as in the U.S. – is not only deeply unfair, but also, crucially, leads to greater costs than a functioning one tier public system which also – as in most European countries – delivers better outcomes overall.

    The inherent danger of Ireland’s two-tier model, where health care provision is subject to market forces is epitomised by a question recently posed by a Goldman Sachs executive: “Is curing patients a sustainable business model?” In an age of profound health insecurities – which are amplified through subtle advertising cues – market forces will continue to distort public health priorities.

    It was the father of economics Adam Smith who warned: ‘People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.’ However, while resisting a buccaneering tendency in the delivery of a vital government service such as healthcare, the left cannot afford to dismiss the dynamism of entrepreneurship in society at large. Just imagine the food you would be served if the government was running all the restaurants.

    Following Public Health Guidance

    While there are a range of financial supports available to SMEs, the world-beating length of Ireland’s lockdown has made trade impossible for many businesses, some of which may never recover. The failure of the two centre-right parties in government to represent their concerns arguably, lies at the heart of Ireland’s deeply flawed response to the pandemic.

    From March to June, 2020, 96% of additional deaths related to COVID-19 in Europe occurred in patients aged older than 70 years. Yet, despite having the youngest population in the Union, according to a Reuters by February Ireland had endured 163 days of workday closures. This was the highest, by some measure, of all the European countries surveyed at that point. By contrast, Denmark had lost just fifteen days, having experienced a death toll almost half that of Ireland’s per capita.

    The uncritical attitude of mainstream Irish left wing parties towards public health officials should also be reconsidered. Recall the major mistakes in particular by Chief Medical Officer Tony Holohan, who saw nothing wrong with fans going to Cheltenham in early March, 2020, ordered care homes to re-open to visitors that same month, and then transferred 4,500 untested patients back into care homes – surely contributing to the second highest level of care home mortality in the world during the first wave. Yet Irish left wing politicians have consistently complained about the government failing ‘to follow public health advice,’ despite Holohan’s long history of cock-ups and cover-ups.

    Even before Christmas NPHET – a body composed primarily of career civil servants and notably short on scientific expertise – seemed to have been all on board for the ’meaningful Christmas’ of Micheal Martin’s imagination. The only significant deviation between the government’s approach and NPHET’s advice was that the latter preferred to permit household gatherings rather than opening the hospitality sector. Cue raucous Christmas house parties, as opposed to what were mainly orderly affairs in pubs and restaurants.

    In fact, Ireland’s ‘third’ wave, which coincided with the more transmissible B.119 variant (although apparently not more lethal as was widely reported) actually commenced in week 48 of 2020 (22/11/2020), while the country was still under Level 5 Lockdown restrictions, according to a report by the HSPC.

    Sadly, public health obscurantism has also brought denial of their own data, which said outdoor transmission of Covid-19 is about as frequent as curlew sightings.

    The latest embarrassment over NPHET refusing to acknowledge the benefits of antigen testing, underlines that if left-wing politicians are slavishly going ‘to follow the public health advice,’ and whatever Yes Minister civil servant advises then we won’t see radical reforms in Ireland any time soon.

    Frank O’Connor

    Guests of the Nation

    Over the course of the pandemic Irish attitudes have hardened against the free movement of people in and out of the country, culminating in the introduction of mandatory hotel quarantines for some foreign, including EU, arrivals at the end of February.

    Contemporary Irish attitudes to hardworking foreigners resident in Ireland recall Frank O’Connor’s classic 1931 short story ‘Guests of the Nation.’ Set during the War of Independence 1919-21 it portrays a bond of friendship that grows up between two IRA men, Bonaparte (the narrator), and Noble, who are detailed to guard two captured English soldiers Belcher and ‘Awkins who have a natural affinity with the country:

    I couldn’t at the time see the point of me and Noble being with Belcher and ‘Awkins at all, for it was  and is my fixed belief you could have planted that pair in any untended spot from this to Claregalway and they’d have stayed put and flourished like a native weed.

    Ultimately ‘Awkins and Belcher are sacrificed at the altar of of a narrow nationalism, just as a today the Populist appeal to ‘protect our own people’ has ordained that the rights of immigrants in Ireland, and abroad, to see their families was disregarded.

    This appears to stem from a widespread notion that ‘we,’ like faraway New Zealand and Australia, can eliminate the disease from ‘our’ shores altogether – devolving into the juvenile #wecanbezeros hashtag adopted by some politicians on the left. The problem is that ‘we’ are a society with lots of ‘them’ immigrants living here, and an enormous diaspora of ‘us’ beyond the shores of an island divided into two jurisdictions, highly dependent on international trade in goods arriving on trucks (with drivers).

    Moreover, apart from the extreme geographic isolation and sparse populations of Australia and New Zealand, ‘we’ in Ireland have legal obligations to preserve freedom of movement under European treaties and the Good Friday Agreement, enshrining a porous open land border. Apart from committing economic hari-kari, pursuit of ZeroCovid appears legally impossible, unless of course we want to pursue an Irexit and build a wall along the Northern border.

    Nonetheless, egged on by febrile – ‘if it bleeds it leads’ – coverage in a national media increasingly reliant on government advertising, a prevailing view is that all deaths from Covid are essentially preventable; emanating from the failing of the state, or the reviled Covidiot, rather than being the tragic consequence of a pandemic, the death toll from which has been systematically exaggerated.

    Moreover, intercepted correspondence within the ZeroCovid ISAG group of independent scientists – who have taken on the Opus Dei role to the Catholic hierarchy of NPHET – reveals, among other disturbing insights, that they were looking ‘for ways to increase insecurity, anxiety and uncertainty.’ As these revelations first appeared in right-wing Gript, however, the left-wing echo chamber refuses to acknowledge it is being played.

    Are you right there Michael?

    Nonetheless, a number of politicians have come forward representing an anti-authoritarian left, concerned by the harms of lockdown and favouring a targeted approach – protecting the elderly – and building up ICU capacity. In a recent blistering Twitter attack the independent (and former Labour) TD for Clare, barrister Michael McNamara – who as chair of the Oireachtas Committee on Covid-19 Response became as well acquainted as any Irish politician with diverging epidemiological assessments of the pandemic – identified a recurring Irish deference to vested authority.

    In response to a Fintan O’Toole article critiquing the DUP McNamara wrote: ‘Instead of criticising unionism, let’s look at the complete mess we’ve made of Irish nationalism and nationhood. We’re ruled by a junta of medics, just as we were Rome Ruled for 7 decades. The Orthodoxy changes but the crawthumping remains the same.’

    He continued: ‘If it wasn’t for Unionism, we’d be like Hoxha’s Albania now. There’d be no way off this island. But there is a beacon. Belfast Airport and Larne are beyond the reach of NPHET, just as surely as the rule of the Archbishop’s palace in Drumcondra didn’t pass the bridge in Portadown.’

    He added more controversially:

    ‘We can’t blame the medics for their experimental therapy, any more than we could blame the clergy for their zeal.  Successive governments have abdicated their democratic responsibility throughout this State’s short history. So why would Unionists want to be “governed” by Dublin?’

    It was a fair question, when one considers the North is reopening far sooner than the Republic. Although this has arrived after a rapid vaccine rollout, the experimental nature of which McNamara raises problems with.

    Facing Up to Errors

    Here we come to the crux of an unhelpful cultural division between left and right that the ruling parties will use to divide and conquer. This is the new identity politics arising out of the pandemic, epitomised by attitudes towards face masks.

    For too many on the left the science on this issue is proven as opposed to followed. Wearing a face mask now appears to have become an article of faith. Yet a recent report by the European Centre for Disease Control and Prevention entitled ‘Using face masks in the community: first update – Effectiveness in reducing transmission of COVID-19’ stated:

    The evidence regarding the effectiveness of medical face masks for the prevention of COVID-19 in the community is compatible with a small to moderate protective effect, but there are still significant uncertainties about the size of this effect. Evidence for the effectiveness of non-medical face masks, face shields/visors and respirators in the community is scarce and of very low certainty.

    Additional high-quality studies are needed to assess the relevance of the use of medical face masks in the COVID-19 pandemic.

    Moreover, the Irish left should consider our dependence on pharmaceutical behemoths that jealously guard intellectual properties, notwithstanding huge state aid grants, and indemnification against adverse reactions. It is akin to the dependence of small farmers in developing countries on genetically modified seed, under a model of Philanthrocapitalism overseen by Bill Gates, who according to a recent article by Alexander Zaitchik has shown “a lifelong ideological commitment to knowledge monopolies,” and devotes hundreds of millions of dollars each year to whitewashing his reputation through “charitable” media grants.

    Moreover, all too often, media debates around Covid-19 fail to acknowledge the link between pre-existing morbidities – ‘underlying conditions’ – and morbidity and mortality from Covid-19. Thus, US Studies have shown that having a BMI over 30—the threshold that defines obesity—increases the risk of being admitted to hospital with covid-19 by 113%, of being admitted to intensive care by 74%, and of dying by 48%, making it almost as relevant a consideration as having been vaccinated.

    In Ireland, moreover, Mayo coroner Patrick O’Connor recently questioned the attribution of deaths to Covid-19, saying: ‘In reality, a lot of people have terminal cancer or multiple other serious co-morbidities. People can die from Covid and or with Covid. I think numbers that are recorded as Covid deaths may be inaccurate and do not have a scientific basis.’

    https://twitter.com/SunTimesIreland/status/1383791062846562307

    Furthermore, by embracing ZeroCovid Utopianism many on the Irish left failed to focus on the failings of a decrepit Irish health system. This epitomises a tendency among politicians to dance to the tune of a corporate media that has placed relentless focus on the disease itself, regularly interviewing mendacious ISAG figures, while generally ignoring underlying social and environmental factors that drive morbidity and mortality.

    The canard that Ireland could simply shut its borders and reach ZeroCovid perhaps points to the need for reform of an Irish secondary educational system, which according to the a rather unkind assessment from the OECD’s Andreas Schleicher is designed to produce ‘second-class robots.’ Perhaps too many of us are lacking the requisite critical faculties to look beyond news headlines.

    In fact a radically different, defiantly left-wing approach to the pandemic been put forward by, among others, Harvard epidemiologists Katherine Yih and Martin Kuldorff in The Jacobin. They pointed out:

    Elites have seen their stock portfolios balloon in value, and many professionals have been able to keep their jobs by working from home. It is the country’s poor and working-class households, particularly those with children, who have borne a disproportionate share of the burden. Lower-income Americans were much more likely to be forced to work in unsafe conditions, to have lost their livelihoods due to business and school shutdowns, or to be unable to learn remotely.

    Beyond ZeroCovid, the Irish left should emphasis the harms of Ireland’s reliance on lockdowns, and harness the malcontents of the poorest, including small business owners. Otherwise they court irrelevance as the traditional ruling parties have already taken on the role of ‘caring’ for the people, while retaining the power to ease restrictions in the face of opposition from the left.

    Science and Technology are not Neutral

    Also, as opposed to running in fear from being labelled anti-vaxxers by a cheerleading corporate media, the left might at least consider the wisdom of foisting vaccines that have been granted under emergency use conditions on all age groups. Indeed, many on the left in Ireland seem unwilling to question dominant institutional narratives, a tendency recently criticized by the Greek socialist Panagiotis Sotiris in The Jacobin, who said: ‘What is missing here is something that used to be one of the main traits of the radical left, namely, an insistence that science and technology are not neutral.’

    It remains unclear whether universal immunization will bring about long-term ‘herd’ immunity; while in the absence of long-term safety data the benefits to young, healthy subjects of vaccination may not outweigh the cost in terms of adverse events from treatments granted under emergency use licences. Sober assessment seems to have given way to an ideological and, at times, a coercive approach.

    In terms of the efficacy of the Pfizer vaccine, writing in the British Medical Journal, Peter Doshi, pointed to how in the media ‘a relative risk reduction is being reported, not absolute risk reduction, which appears to be less than 1%’ for severe disease.’ Ollario et al in The Lancet referred to absolute risk reductions of ‘1·3% for the AstraZeneca–Oxford, 1·2% for the Moderna–NIH, 1·2% for the J&J, 0·93% for the Gamaleya, and 0·84% for the Pfizer–BioNTech vaccines.’ The authors also pointed to how ‘considerations on efficacy and effectiveness are based on studies measuring prevention of mild to moderate COVID-19 infection; they were not designed to conclude on prevention of hospitalisation, severe disease, or death, or on prevention of infection and transmission potential.’

    Doshi has also objected to the undermining of ‘the scientific integrity of the double-blinded clinical trial the company—and other companies—have been conducting, before statistically valid information can be gathered on how effectively the vaccines prevent hospitalizations, intensive care admissions or deaths.’  This came after Pfizer pleaded an ‘ethical responsibility’ to unblind its trial and offer those who received a placebo the opportunity to receive its vaccine.

    Doshi argued that ‘there was another way to make an unapproved vaccine available to those who need it without undermining a trial. It’s called “expanded access.” Expanded access enables any clinician to apply on behalf of their patient to the FDA for a drug or vaccine not yet approved. The FDA almost always approves it quickly.’

    An alternative policy would be to reserve vaccines for those most susceptible to severe symptoms – the old and the obese – along with healthcare workers and others unavoidably working around the world in congested environments. Devoting scarce resources to increasing ICU provision to bring us into line with European averages might be a better approach than relying exclusively on the quick fix of the vaccine.

    The Irish left should now desist from identity politics around vaccine uptake that the centre-right is relishing. ‘Tiktok’ Harris previously stoked tensions with talk of mandatory vaccines and promoting vaccine passports. The left should resist vaccine apartheid, nationally and globally, while demanding the release of patents earned through state supports.

    On the Horizon

    Ireland can expect significant social problems to emerge out of our world-beating lockdown strategy that recalls a prior devotion to austerity; a mental health pandemic and mass youth unemployment are upon us already. Moreover, the young are currently denied the safety valve of an easy hop to another English-speaking country for work. This may be a recipe for radicalism, but unfortunately genuinely dark forces on the far-right are ready to pounce on malcontents.

    It is surely vital that we maintain our European connections, thereby scrapping Mandatory Health Quarantine that is an insult to immigrant groups in Ireland, as well as the diaspora. 90% of scientists believe that Covid-19 will be with us forever, so it seems there will always be ‘variants of concern’ to contend with, just as there are with influenza.

    As a country Ireland has serious work to get on with in terms of addressing a housing crisis and improving our environment. A narrow focus on the pandemic should not be allowed to derail these efforts. This may be like a war but it is not a war. Even prior to vaccines, this is a virus with an infection fatality rate of less than 0.2% in most locations. Moreover, up to 86% of those infected may not have symptoms, such as cough, fever, or loss of taste or smell, according to a UK study from October. We require better provision of public health and an adequate plan to address the ongoing obesity pandemic.

    We also need to start thinking more critically — and speaking more cautiously — about Long Covid, considering ‘at least some people who identify themselves as having Long Covid appear never to have been infected with the SARS-CoV-2 virus.’

    We need to start thinking more critically — and speaking more cautiously — about long Covid

    A New Social Contract?

    The pandemic calls for a new social contract to be negotiated in Ireland that acknowledges republican values of Non-Domination; Mixed Government and tolerance of Obstreperous Citizens. The French COVID-19 Scientific Council led the way in a paper for The Lancet:

    it is time to abandon fear-based approaches based on seemingly haphazard stop-start generalised confinement as the main response to the pandemic; approaches which expect citizens to wait patiently until intensive care units are re-enforced, full vaccination is achieved, and herd immunity is reached.

    They continue:

    Crucially, the new approach should be based on a social contract that is clear and transparent, rooted in available data, and applied with precision to its range of generational targets. Under this social contract, younger generations could accept the constraint of prevention measures (eg, masks, physical distancing) on the condition that the older and more vulnerable groups adopt not only these measures, but also more specific steps (eg, voluntary self-isolation according to vulnerability criteria) to reduce their risk of infection. Measures to encourage adherence of vulnerable groups to specific measures must be promoted consistently and enforced fairly. Implementation of such an approach must be done sensitively and in conjunction with the deployment of vaccination across the various population targets, including all generations of society.

    They argue against reliance on lockdowns:

    Using stop-start general confinement as the main response to the COVID-19 pandemic is no longer feasible. Though attractive to many scientists, and a default measure for political leaders fearing legal liability for slow or indecisive national responses, its use must be revisited, only to be used as a last resort.

    To date, many on the Irish left appear to have had their heads in the sand promoting a Utopian ZeroCovid solution. This should give way to a more balanced appraisal that considers the interests of all of Irish society. With the youngest population in Europe, and as one of the richest countries, the Irish government could have preserved a far higher standard of living for the population during the pandemic. We now need to draw up a social contract that takes a more balanced approach.

    Featured Image: Daniele Idini

    [i] O’Toole, Fintan (editor), Up The Republic: Towards a New Ireland. Faber and Faber, London, 2012, p.1-52.

    [ii] Arendt, Hannah, The Origins of Totalitarianism, Penguin, London, 1966, p.22

    [iii] Eric Hobsbawm, How to Change the World, Tales of Marx and Marxism, Little, Brown, London, 2011, p.79

  • Rule of Law Backsliding in Rogue EU States

    This is an abridged interview with jurist Laurent Pech, Professor of European Law, Jean Monnet Chair of European Public Law (2014-17), and Head of the Law and Politics Department at Middlesex University London. Professor Pech identifies rapid autocrisation in a number of EU states, particularly Hungary and Poland, where the Rule of Law has been undermined in a three stage process that has been exacerbated by the emergency conditions of the pandemic.

    On Mandatory Hotel Quarantines

    Technically it has always been possible for national authorities to restrict EU free movement rights on a number of grounds, such as public health. But EU law is normally opposed to collective measures. So you can only restrict on a number of grounds the exercise of free movement on a case by case basis. And you must always comply with the principle of proportionality, so you cannot impose disproportionate measures in the name of public health. You have to have a compelling reasons and you have to demonstrate them on a case by case basis. I’m not familiar with the measures contemplated by the Irish government …

    Without knowing the details of any general policy of containing EU citizens or more generally, [a mandatory hotel quarantine for] EU residents, regardless of citizenship, in my view, would not be compatible with the law, as I understand it.

    What I can tell you is that public health can only be used as a grant of derogation for individual cases, not for the blanket prohibition on arrivals from other EU countries. I don’t think … the European Commission, would let it fly.

    …

    I’m not familiar with any [other] EU country … which is essentially preventing residents in the EU from travelling as a collectively speaking, as a country, imposing on EU residents, trying to get to another EU country and then the mandatory quarantine.

    On the Rule of Law

    I can tell you what the Rule of Law is in EU law in the law of the European Convention on Human Rights, in fact, in our Constitution, constitutional law … the case law has defined the rule of law quite compellingly. Why are we debating these days the definition of the rule of law?

    …

    the concept is being challenged, especially from current authorities in Warsaw and Budapest. The argument is the Rule of Law is too vague and meaningless. It does not exist. And it’s just kind of an intellectual subterfuge to impose neoliberal policies or whatever. But as a matter of EU law, actually, the Rule of Law can be defined. It’s normally defined, understood as a set of legal principles, such as the principle of legal certainty, the principle of judicial review before independent courts, respect for human rights, these kind of principles.

    …

    The Rule of Law is to be found in the EU treaties and has been exhaustively defined both in EU legislation and in the case of the European Court of Justice.

    …

    The essence of the Rule of Law is that we have rules to prevent the abuse of power so we can do something about the abuse of power. We can fight abuse of power, abuse of public power both. But to do that, we need independent consent, which is why one of the components of the Rule of Law is independent courts, where you can assert your rights against the public authorities. So the essence of the Rule of Law, is essentially that even the king, even the president, is subject to the law. There are no distinctions; everyone can assert a right against the public authorities. So this is the essence of the Rule of Law even before the EU itself was created.

    It’s one of the many checks and balances on what we can call unhealthy democracy … certain countries in the European Union have gone down a path where, as for the Rule of Law being challenged in its conception, in its very existence, also other type of checks and balances such as freedom of the press. I mean, it looks like that once one is gone. Then the other one follows.

    Hungary and Poland

    In the case of Hungary and in the case of Poland, essentially, we have a new breed of autocrats. They’re not like the old autocrats, where you see tanks one morning in the streets and then a clear change of regime in the afternoon. It’s much more difficult and they’re much smarter than the previous generation. So I have used the concept of Rule of Law, backsliding of democracy and the Rule of Law; I use the term backsliding to describe what has been happening in the past ten years in these two countries.

    To summarize briefly the process … They only need to get free and fairly elected once and then as soon as they’re elected their job is to make sure to rig the system, to undermine the checks and balances before the next legislative elections. How do you do that? … they tend to always apply the same playbook or the same cooking recipe. The first two steps you’re going to take is you’re going to capture of the Supreme Court or the constitutional court of the country.

    You either purge the current membership of the Supreme Court or you appoint new judges to the Supreme Court … You don’t care whether you comply with the Constitution, because by the time you have captured the Court, then you can get the new court to argue that what you want is not a violation of the Constitution…

    At the same time, what we’ve seen in Hungary, Poland and elsewhere is that while you are violating the Constitution in plain sight, you have to capture the public broadcaster. Or do you do that? If you have a parliamentary majority it is very easy. You can violate the Constitution and you can just pretend it’s not a violation of the Constitution. You’re going to appoint a new board and you’re going to appoint a new president and you’re going to use the taxpayers’ money essentially also to bully or try to corrupt or bribe the private media outlets as well into submission. Why is it important to capture the media? Because you need to shape the public narrative while you are openly violating the Constitution.

    Scapegoats

    You have to explain or try to convince the people that yes, maybe, yes, we are violating the Constitution … but we are doing this in the name of the people. And you are going to convince them this is what you want and then you going to use this some scapegoats in the process. So what you see, what we’ve seen in Poland, Hungary and elsewhere is that they always have a huge need for scapegoating.

    So it’s going to be George Soros … you name a new thing and then they change. They rotate. … It was perhaps worth stressing that you have a change of scapegoat every six months to twelve months when you have exhausted one you need another scapegoat … then it could be also academics. So it could be a corrupted journalist, it could be Communist judges. You need to smear, essentially, the guardians of the Rule of Law. So once you have captured the Supreme Court and the media, you’re going to use scapegoating … You’re going to then bully into submission, order what are called guardians of the Rule of Law, guardians of democracy, the press being one of the key checks on power.

    …

    What I’ve seen emerge in the past few years, is that to avoid European criticism, what they do, they use proxies … what do I mean by proxy? A fake association, a fake NGO which indirectly or directly is given taxpayers’ money … You use a story as a way of distracting the people from the destruction of checks and balances.

    The new would-be-autocrats are much more difficult to fight because a lot of time by the time people wake up it’s a bit too late … the media sector is gone, judicial branch is gone. And then obviously they’re ready for the next elections with the press either bullied into submission or brought to bankruptcy.

    The Last Steps

    One of the last steps in this kind of Rule of Law backsliding process is to radically change the rules of the game. So by the time you have the next legislative election, they’re going to have reformed completely the electoral code. They’re going to capture the electoral commission as well. So it means that they can essentially rig the elections … usually it’s enough to control the ecosystem of the public media. But then also, if need be, you can also rig electoral results in a specific constituency … Also, remember, if you have captured the judicial branch, it means that there’s no place for you to go to challenge the results of the election, even if the results have been gained through unlawful means

    You can you still have elections. Yes, the opposition can win … but it’s virtually impossible to win in these conditions.

    There is no electoral level playing field anymore. Within three, four years, the system has been completely captured … Hungary is no longer a democracy. I expect Poland to be another electoral taken custody within the next two years.

    In fact, Poland is quite dramatic in a way. They had two presidential elections last year. Both of them were completely unconstitutional. I mean, there is not even a room for discussion. They were held in unconstitutional conditions.

    It’s possibly what I call the authoritarian gangrene is going to spread to other EU countries because people are watching, people are paying attention and they’re saying, well, look, it’s working, it’s working fine for Orban and Kaczyński, so why not me? Why not implement this recipe as well in my own country?

    In Hungary the main newspaper, which is not in the control by the government, now has sixty defamation lawsuits pending against. Essentially they’re trying to bankrupt these main opposition newspaper through lawsuits … then you’re going to punish judges if the lawsuits are wrongly decided, so to speak. In addition to that, you have the death threats, that you have a smear campaign. So much so that essentially, if you’re a critical journalist, then you may have no choice but to leave your own country if you want to pursue your profession. What’s happening to journalists is also happening across the board to judges, lawyers, academics. And so we are talking here essentially about a return to the old fashioned de facto one party state. And so I’m afraid we have to be aware of the gravity of the situation

    The Silver Lining

    The silver lining is that Poland and Hungary are the two most extreme cases of autocratic nations, at least in the EU … But maybe we’re going to get there slowly but surely in terms of third possible candidate in the EU. Now, we’ve been talking about Slovenia in the past few weeks because of the parameters of the attacks essentially trying to take control of the Slovenian state agency. And this Slovenian prime minister is indirectly funded by Orban. So essentially Orban is trying to export his model into the Balkans and also into Slovenia. We’ve been talking about the situation in Romania and Bulgaria for quite some time. Malta has also been in the news following the assassination of a journalist who was investigating corruption cases.

    I would say some political entrepreneurs are looking at how successful Orban and Kaczyński have been. Some of them are wondering whether, in fact, this is a good way forward, not for ideological reasons, just possibly this autocratic playbook is a good way of wining power and retaining it.

    The Situation in the U.K.

    Poland and Hungary are just the two most advanced cases in the EU. I have personal worries about the situation in the U.K. if we leave the EU for a minute … there are clear indications that the ruling majority in the UK is trying to dismantle or capture the checks and balances. So essentially they’re trying to annihilate any accountability, including changes to elections. Usually when you see changes being contemplated regarding the electoral commission or electoral rules or IDs to be required to vote and then surprise, surprise, those most disadvantaged by the new electoral rules are those not voting for the ruling party. So this is when you have to get worried. And also in the U.K. we’ve been talking about changing judicial review to make it more difficult to challenge that. And we’ve been talking also about possibly reducing the jurisdiction of the Supreme Court.

    [During the pandemic] I’ve seen an excessive use of secondary legislation. So the parliament has essentially abdicated its role as the key legislator and the government has taken over defining or restricting free movement, something which normally can only be done by the parliament. So I would say this is also part of a potential authoritarian pattern. So we need to really make clear, because once the government is in the business of de facto legislating in place of the parliament, then essentially abuse of power can easily be committed. And if at the same time judicial review is undermined, then you find yourself essentially without any avenue to challenge the excessive use of power. I’m not a libertarian myself, but certainly as a lawyer, I have strong concerns when I see the government essentially becoming the de facto parliament in the name of the Covid-19 emergency.

    Press Freedoms

    So there is ongoing work in the EU to make it more difficult for politicians or oligarchs, these regimes, to sue or bully (journalists) into submission.

    We need to go back to what was the case in the nineteen eighties through strong anti-concentration rules in the media market … if we want to have media pluralism, we need to have a properly functioning media market. You cannot have dominant players essentially asphyxiating the market. So you need to prevent abuse of a dominant position … if we had a well-functioning media market, we would be protected from public abuse of power, but also prevent abuse of power. And the abuse of power does not necessarily come from overbearing governments, it can also come from overbearing private actors. Think of Amazon, think of Google. There is a lot of work to be done in this regard. So concentration of power, whether private or public must be constrained, must be restricted and subject to the law applied by independent courts.

    Covid-19 and Authoritarianism

    Covid-19 has been kind of a blessing in disguise for these autocratic regimes …. giving them even more powers than they used to have … an exceptional situation calls for exceptional powers. But the problem is, once these kind of governments get accustomed to exceptional powers, then they don’t want to give it back …

    So then that’s going to be the next battle as soon as the covid-19 situation is under control. I mean, we need to make sure that parliaments everywhere get back into the business of what they’re supposed to be doing in the first place, which is legislating and controlling the executive these days. What we’re seeing is just an executive without being subject to any meaningful scrutiny from any national parliaments anywhere. So this is actually the widespread issue.