The ECtHR judgement, earlier this month, in SGP v. the Netherlands is an amazing illustration of the glories of legal messiness and Dutch poldermodel lawyering. Unfortunately, though predictably, it ends with a bit of a fizz.
The facts, in a nutshell: The Staatkundig Gereformeerde Partij is the most orthodoxly Christian party in the Netherlands, and also our oldest political party. Since 1918, they’ve consistently held 2 seats in Parliament, and on general principle they’ve never submitted a woman candidate for Parliament, nor do they intend to. Question: are they legally permitted to discriminate against women in this way, and is the State permitted to subsidise them as it does with all political parties?
Let the legal fun begin: The former question is one that belongs in the realm of civil law: to some extent, it is a straightforward tort action, and theoretically it could have also been an action to have the party annulled under art. 2:19 Civil Code, as was done with the paedophile party recently. Such litigation starts at the District Court, with an appeal to the Court of Appeals ending up – on points of law – with the Hoge Raad, the High Council. In this particular litigation, the District Court found that the plaintiffs lacked standing to sue the SGP in the absence of an actual real-life woman who might want to stand for election as an SGP candidate. At the same time, the court did hold that the State was acting unlawfully by subsidising the party and ordered it to stop. This decision was overturned on appeal - a decision upheld in the High Council - on the grounds that the SGP was acting unlawfully but that it was not within the power of the judiciary to tell the Minister which parties to subsidise.
The subsidy question, however, is also/primarily of administrative law. It asks the court to annul a decision made by the executive branch of government, specifically by the Minister for the Interior (in this case the also pretty orthodoxly Christian Piet-Hein Donner, more about him later). Administrative litigation also starts at the District Court, but goes from there straight to the judicial division of the Council of State. In this litigation, the District Court held that the Minister acted correctly in obeying the above-mentioned decision by the civil courts. The Council of State, however, sided with the party and ordered the Minister to take a new decision that placed a greater emphasis on the importance of pluralism in the party-system.
In other words, the Minister was faced with two conflicting final decisions, neither of which gave anything in the way of guidance as to what should be done next. So what is Piet-Hein Donner to do? Being a Dutch Christian-Democrat, he sent the SGP a letter, asking them essentially whether there was any formal rule that made it impossible or at least more difficult for a woman to end up as a candidate for the SGP. The SGP replied that formally all persons are treated equally. (In response to the first District Court judgement, the party had at least taken the step of allowing women to become members.) For that reason, the Minister decided that there was no need at this point to do anything at all, the normal subsidy was to continue. On February 1 this year, Piet-Hein Donner started work as the new Vice-President of the Council of State (HM the Queen is the President of the Council, so that makes the Vice-President the person in charge of day-to-day affairs.)
Before reflecting further on this clusterfuck of a litigation history, it is interesting to see what the European Court of Human Rights did with this formal vs. practical impossibility argument:
76. The issue in the present case is the applicant party’s position, restated in the present proceedings before the Court, that women should not be allowed to stand for elected office in general representative bodies of the State on its own lists of candidates. It makes little difference whether or not the denial of a fundamental political right based solely on gender is stated explicitly in the applicant party’s bye-laws or in any other of the applicant party’s internal documents, given that it is publicly espoused and followed in practice.
This seems correct. In the Minister’s defence, however, his decision was meant only to cover the period until the Court would rule, so a certain status quo bias on his part was defensible.
Another fairly obvious thing to say about this litigation is that it shows once again why it is not a good idea to have four highest courts, as the Netherlands does. (In addition to the High Council and the Council of State, which we already encountered above, there is the Central Council of Appeals and the Commission of Appeals for Business.) There is no good way to resolve the tension between the judgement of the civil courts and the judgement of the administrative courts. However, this is a discussion that has been going on for decades, so far with little success.
The more interesting question is what to do with the SGP and its position on women politicians. For the ECtHR it is an easy one:
77. The Supreme Court, in paragraphs 4.5.1 to 4.5.5 of its judgment, concluded from Article 7 of the Convention on the Elimination of All Forms of Discrimination against Women and from Articles 2 and 25 of the International Covenant on Civil and Political Rights taken together that the SGP’s position is unacceptable regardless of the deeply-held religious conviction on which it is based (see paragraph 49 above). For its part, and having regard to the Preamble to the Convention and the case-law cited in paragraphs 70, 71 and 72 above, the Court takes the view that in terms of the Convention the same conclusion flows naturally from Article 3 of Protocol No. 1 taken together with Article 14.
78. That said, the Court must refrain from stating any view as to what, if anything, the respondent Government should do to put a stop to the present situation. The Court cannot dictate action in a decision on admissibility; it is, in any case, an issue well outside the scope of the present application.
79. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
This is almost certainly a correct application of the Court’s case law. However, personally I don’t like it. Much as I am perfectly willing to place the right of the inviolability of the person above the right of parents to carry out religious ceremonies with their children, that does not mean that I would resolve a conflict between the freedom of religion and the freedom of association on the one hand and the right of non-discrimination on the other hand in the same way. Specifically, I would object to this statement of the Court as being much too restrictive of genuine party pluralism:
71. The Court has also held that a political party may, under the Convention, pursue its political aims on two conditions: firstly, the means used to those ends must be legal and democratic; secondly, the changes proposed must themselves be compatible with fundamental democratic principles (see Refah Partisi and Others, cited above, § 98). Provided that it satisfies these conditions, a political party animated by the moral values imposed by a religion cannot be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention (Refah Partisi and Others, § 100).
Like Bernard Shaw said in the preface of Major Barbara:
To guarantee his freedom on condition that you approve of his moral character is formally to abolish all freedom whatsoever. This is the lesson Democracy has to learn before it can become anything but the most oppressive of all the priesthoods.
Political parties should be free to espouse just about any viewpoint they like, as long as they do nothing more than espousing. That goes for paedophilia as much as for discrimination against women. The freedom of speech and association of political parties is at the very core of our liberty and democracy, and it must be protected with the absolute maximum of vigilance against the politically correct priesthood.
The whole benefit of a proportional representation system like the Dutch is supposed to be that it allows a whole gamut of political parties to enter Parliament, ranging from the deranged animal rights people to the equally deranged ultra-orthodox Christians. We, as a nation, have chosen a system that defends the right of individuals to stand up in Parliament to argue that fish have feelings too, or that televisions are the eye of Satan and therefore do not belong in the homes of good Christians. (No, I didn’t make either of those two up.) What is the point of having such a pro-pluralism system if at the same time you are going to install all sorts of gatekeepers to keep the weirdos out?
That said, it is important to remember that this is not actually a case of horizontal effect. In the end, the case against the SGP directly was thrown out in the District Court. The only thing at issue here is about € 500.000 in annual state subsidy, a sum that represents about a third of the party’s annual income. Still, I would tend to agree with the Council of State: the freedom of opinion and association is given short shrift here.
P.S. For more commentary on this case, cf. Strasbourg Observers.