LIST OF PANELS

This panel focuses on the precarity of democratic and human rights policy-making and policy substance in a Europe which experiences populist onslaughts on citizens’ rights and systems of governing and foreign attempts at influencing elections and citizens’ trust in governments. These developments have made some talk of a return to the interwar period. There are however no grounds to think that history will repeat itself but what is clear is that some of the policy instruments and institutional mechanisms that were put in place to prevent new forms of authoritarianism are under serious attack. In his perceptive book Contesting Democracy (2011: 5) Jan-Werner Müller argues that post-war Europe was marked by democracy constrained: “Europeans created something new, a democracy that was highly constrained (mostly by unelected institutions, such as constitutional courts). The constitutionalist ethos that came with such democracies was positively hostile to ideals of unlimited popular sovereignty…” Human rights and human rights policies were central elements in ensuring and justifying such constraints. Such legal-constitutional constraints – and the institutions and policies sustaining them - have been increasingly targeted by the rising populist tide, from the UK through Brexit in the West to Victor Orban’s ‘illiberal democracy’ in the East. Populists across Europe consider such constitutional constraints and many of the rights and policy instruments - especially those associated with supranational EU and the European Convention on Human Rights (ECHR) laws and rules - as elite onslaughts on popular sovereignty. There is no doubt that supranational systems of rights granting and governing bring up issues of democratic authorization and accountability. At the same time, populist onslaughts on such systems in the name of popular sovereignty is often nothing more than authoritarianism in disguise. In other words, taking back control by no longer subjecting one’s country to supranational systems of rights does not necessarily come with any assurance of domestic national rights protection. The removal of external constraints may offer national leaders great leverage to pursue their chosen policies.

This panel zooms in on the policy dimension of legal-democratic precarity and backsliding. It takes as its point of departure that democracies need to formulate and implement policies which will ensure popular participation, governing accountability, and protection of the rights of all those people(s) living within the territory. It follows that democracies rely on a whole range of policy instruments tailored to ensuring equal and fair participation; policies to ensure that governments are properly held accountable to their citizens; and policies to ensure that the rights of citizens (and foreigners) are adequately protected. Backsliding and undermining of the rule of law can thus be manifested in terms of the nature and realm of policy-making and implementation.

Is there a specific bundle of policy instruments associated with legal backsliding and anti-democratic (authoritarian) onslaughts? Or do would-be autocrats tweak policies and policy-instruments so as to achieve desirable political results or enhance political influence. One possible implication is the need to consider policies in conjunction, as bundled in order to discern clear patterns of democratic and legal backsliding.

Backsliding may occur without actually withdrawing from the European Convention on Human Rights or other European institutions or arrangements that promote the protection of rights. It may simply be effected by policies framed in terms of asserting domestic sovereignty and promoting certain domestic institutions while weakening others that would otherwise promote oversight and accountability of executive policy-making. In what sense do we find:

Policies to structure popular participation and civil society actors

-       Restrict or skew participation in a politically or ideologically desired direction

-       Institute forms of selective participation: include some persons or groups and systematically exclude others

Policies to restrict rights and access

-       Policies aimed at or designed to undermine equality (gender, race, ethnicity, language, religion)

-       Policies aimed at restricting migration or systematically select between desirable and undesirable migrants

-       Policies aimed at undermining the rights of asylum seekers

-       Policies aimed at restricting welfare and workers’ entitlements

Policies to control, direct and shape political discourse

-       Media control

Policies to wield political control of courts and legal bodies

-       Policies to undermine legal integrity and oversight (mandatory retirement policies in Poland); policies to intimidate the judiciary

The analysis of the important policy dimension of legal and democratic backsliding will shed light on the broader issue facing Europe of how to reconcile democracy as majoritarian rule with (minoritarian) constitutional rights-based and other controls - under conditions of complex interdependence and a global context less attentive to legal norms and rules.

We can expect policies and policy instruments to play a role in what appears to be a reconfigured relationship between politics and law as countries embark on weakening the rule of law and downscaling constitutional protections. This challenge is readily apparent in the multilevel constellation that makes up the European Union; it is however also an issue that post-Brexit United Kingdom has to grapple with. There are pleas there for exiting the European Convention of Human Rights and for initiating other measures that may weaken rights protection for UK citizens and migrants.

Papers could generally or specifically refer to policies, either already introduced or promoted, that undermine Europe’s legal and constitutional support for rights without providing adequate domestic protections in their place. Papers may, for example, focus upon discriminatory policies against minorities; policies that act to infringe economic and social rights (such as access to education or healthcare); policies undermining the rights of asylum seekers; laws infringing the access of people to a fair trial or, more generally, laws undermining executive accountability.

The panel also invites papers that assess the nature and magnitude of the challenge to constitutional rights-based policy-making and democratic backsliding across Europe. Is there a general and fairly uniform tendency associated with the rise of populism? Or are developments more region-specific and related to countries’ histories and political regimes? How significant are differences between Western and Eastern Europe, and in relation to Southern Europe, in particular given the recent Italian election and the new Meloni government? For post-Brexit UK what about the challenges it faces in reconciling constitutionalism and democracy, and what that entails in human rights and other related policy terms.

The question of reconciling constitutionalism and democracy and what that entails for the support within countries for policies and policy-making that bolsters human rights protections is more important today given the current uncertainty around the EU’s future development and the rule of law. The panel accordingly invites papers to place emphasis on taking this context into account. Of particular interest are the challenges we face during times of crisis, emergency, and heightened global uncertainty around adherence to rules and norms.