Dire predictions are a dime a dozen. Plausible dire predictions are something else: that one could be made during a faculty-of-laws webinar is as improbable as a murder in a vicarage. And yet, and yet...
It’s a prediction of the plausible variety that was made last week by Tonio Borg, the former European commissioner and, now, legal scholar. The webinar’s subject was the government’s equality bill. Or, rather, two bills (96 and 97). One bill spells out the legal implications of the value of equality. The other establishes the equality board that will serve as investigator and enforcer, its decisions having legal effect (though it’s possible to appeal them in court).
Borg opposes the idea of giving the board legal powers to enforce punitive damages up to €20,000 and, for certain cases, of €500 per day. Only the courts have that power in Malta. Borg reminded everyone that the constitutional court has, in recent years, insisted that punitive damages can only be imposed by the courts and they need to be involved from the first instance, not from the appellate stage.
Borg opposes on principle. Edward Zammit Lewis, the justice minister, is proposing that the constitution be changed to adopt the looser threshold of the European Convention of Human Rights and which would permit the equality board to have such powers. Borg says this proposal waters down our current safeguards, which are more prudent in a polity where the state has repeatedly behaved belligerently towards individuals.
Zammit Lewis’s proposed constitutional amendment will require a two-thirds majority to pass. He is unlikely to get it.
Borg’s prediction is this. If the government proceeds with giving the equality board legal powers to impose draconian fines, it’s certain that those on whom the fines are imposed will take the matter to the constitutional court – and win. Before the case is decided, however, the board will be paralysed, unable to decide all the cases before it or to take on new ones.
That, Borg agrees, will be catastrophic. For virtually everyone agrees that the equality bill champions values about which there is broad consensus.
So why is the government persisting with this proposal? It has, after all, relented on other points. The ‘supremacy clause’ has been withdrawn. All religious symbols are now exempt from the bill’s provisions, not just those of ‘cultural value’. Church schools will now have the freedom to have the entire curriculum in line with their ethos.
And why are various organisations, including the medical profession, still insisting on an explicit reference to the right of conscientious objection, even though other European equality bills make no reference to it?
The objectors’ reasons are easier to explain. One critical factor is the growing Americanisation of European politics, which is shaping the political arena in ways that no national government can control. The increasing connectivity of the entire ‘federal’ area brings pressure to bear on jurisdictions that appear to be hold-outs against the major trends. European institutions are increasingly claiming to speak with moral authority over matters that are of national competence.
Judges (or, potentially, equality boards) could end up, effectively, making law in the process of applying it- Ranier Fsadni
The tendency isn’t driven only by the ambitions of Eurocrats. There are also bottom-up pressures, too. The European freedoms of movement and access to goods and services are fuelling the instances where conservative jurisdictions come under pressure for denying rights that are granted elsewhere.
Strictly speaking, they should not be problems at all. European law makes it clear where competence lies. But they will be political problems, couched in terms already familiar in the US. And, given that the problems will be couched in an Americanised vocabulary, the solutions will draw on the same dictionary.
We can see it already. While Borg is concerned with due process, other objectors are concerned with what in the US is called substantive due process – the eventual discovery of implied rights inhabiting explicit rights, such as the right to have an abortion being implied in the right to privacy, or the right to surrogacy being implied in the right to have a family. Judges (or, potentially, equality boards) could end up, effectively, making law in the process of applying it.
The government protests that any discussion on abortion will arise, if it does, explicitly. But even those inclined to trust this government will have doubts about future governments.
Those calling for the right of conscientious objection do so as people who are trying to protect their status as an eventual minority. They distrust the cultural tide, not this or that minister.
So why is it that the government will not grant an explicit right to conscientious objection? Or agree to give the equality board the right to initiate cases before the courts but not to have legal powers to impose punitive damages?
In themselves, such changes would be minimal. Denmark is the only country whose equality tribunal has legal powers. Its social results are excellent but no better than those of other countries, like Sweden or Ireland, whose tribunals don’t have legal powers.
Meanwhile, the right to conscientious objection can be defined within legal parameters set by European jurisprudence. It would not be possible to object on spurious grounds. (Indeed, on bioethical issues, as Giovanni Bonello pointed out at the webinar, conscientious objection offers less protection than one might think at the European Court of Human Rights.)
Why then does the government resist? It is in its own interest to give the principled reasons. Without them, it will be partly responsible for inciting suspicion. Above all, it might end up legally sabotaging a worthwhile project.