The Polish Politics Blog

Analysis of the contemporary Polish political scene

What is the political significance of Poland’s government reshuffle?

A sweeping reshuffle by Poland’s new prime minister has changed the shape and direction of its right-wing government with a greater emphasis on economic modernisation, political stabilisation and improving EU relations. But this pivot to the technocratic centre risks alienating the ruling party’s core electorate, and is more about packaging the government’s reforms attractively than abandoning its radical state re-construction programme.

Dismissing controversial ministers, promoting technocrats

In January, Mateusz Morawiecki – who, in a surprise move, replaced Beata Szydło as Poland’s prime minister last month – ended months of speculation by announcing a sweeping reshuffle of the Polish government which, since autumn 2015, has been led by the right-wing Law and Justice (PiS) party. The most symptomatic change involved the replacement of defence minister Antoni Macierewicz, a powerful figure who enjoys the backing of the ruling party’s radical wing, by interior minister Mariusz Błaszczak. Before he took on the defence portfolio Mr Macierewicz headed up a party commission investigating the causes of the 2010 Smolensk tragedy in which the then Law and Justice-backed President Lech Kaczyński, twin brother of party leader Jarosław Kaczyński, and dozens of other senior officials died in a plane crash in Western Russia. The Smolensk issue was a touchstone for the party’s core supporters and viewed as part of a broader pattern betrayal of the country’s interests by the liberal-centrist Civic Platform (PO), Poland’s ruling party between 2007 and 2015 and currently the main opposition grouping.

However, Mr Macierewicz’s commission caused controversy by appearing to countenance sabotage as a possible cause, but failed to find conclusive evidence of this even when it became an official state body after Law and Justice’s 2015 election victory. As defence minister he also clashed repeatedly with Law and Justice-backed President Andrzej Duda who, according to the Polish Constitution, is commander-in-chief of the armed forces. Moreover, Jarosław Kaczyński – who does not hold any formal state positions but exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities, and is always sensitive to potential challengers – became concerned that Mr Macierewicz was using the ministry to develop an independent political power base. Some commentators also suggested that pressure from the US State Department played a decisive role in Mr Macierewicz’s sacking.

Other high profile dismissals included foreign minister Witold Waszczykowski, who was often embroiled in disputes with the EU political establishment and replaced by his less controversial deputy Jacek Czaputowicz. Council of Ministers standing committee chairman Henryk Kowalczyk replaced environment minister Jan Szyszko, who had attracted widespread criticism over his moves to allow logging in the Białowieża primeval forest. Cardiologist and deputy higher education minister Łukasz Szumowski took over as health minister from Konstanty Radziwiłł, who failed to resolve a high profile dispute involving resident doctors. At the same time, Mr Morawiecki appointed his former deputies to lead the key ministries that he had headed up before becoming prime minister: Teresa Czerwińska as finance minister, Jerzy Kwieciński as investment and development minister, and Jadwiga Emilewicz in the entrepreneurship and technology brief. All of these were centrist, technocratic figures not associated with front line party politics; although Mr Morawiecki also re-appointed justice minister Zbigniew Ziobro, who oversaw the government’s controversial judicial reforms.

Strengthening the prime minister and President

Mr Morawiecki only became a Law and Justice member in March 2016 and lacked a power base in the ruling party’s factional politics, raising doubts as to whether he would be able to resolve the government’s main structural weakness: infighting between ministers entrenched in their departmental power bases. However, the fact he appeared to be given a free-hand to stamp his authority on the government and dismiss such powerful figures as Mr Macierewicz suggests that the new prime minister has much greater room manoeuvre then his predecessor. Mr Morawiecki clearly enjoys Mr Kaczyński’s trust and there is even speculation that the Law and Justice leader is grooming him as his long-term successor. Nonetheless, Mr Kaczyński remains a key figure in settling personnel and policy disagreements within the governing camp and ensured that two of his most trusted allies, Mr Błaszczak and party organisation supremo Joachim Brudziński, were appointed to head up the key defence and interior ministries.

Another important consequence of the reshuffle, especially Mr Macierewicz‘s dismissal, was to strengthen Mr Duda’s position and defuse the row between the President and the ruling party which, at one time, appeared to threaten the unity of the governing camp. Relations between Mr Duda and the Law and Justice leadership became very tense after the President’s dramatic and surprising decision last July to veto two of the government’s flagship judicial reform laws, as part of an effort to assert his independence and autonomy. However, rather than embarking upon a confrontational course, Mr Kaczyński decided to try and mend relations with the President and conceded a certain amount of influence to him over policy and appointments. Improving relations with Mr Duda would have been impossible beyond a certain point if Mr Macierewicz had remained in office and Mr Kaczyński was clearly willing to risk alienating certain elements of Law and Justice’s political base in order to strengthen the governing camp’s internal cohesion.

Political stabilisation and improving EU relations

One of the reshuffle’s main objectives was to stabilise and consolidate Law and Justice’s position ahead of a series of key elections: local government in autumn 2018, European Parliament in summer 2019, parliamentary in autumn 2019, culminating in the summer 2020 presidential poll. Since it was elected in 2015, the government has undertaken a series of controversial reforms, notably of the judiciary, civil service and public broadcasting. These have laid the groundwork for a radical reconstruction of the Polish state but also precipitated large-scale anti-government protests and led to opposition accusations of creeping authoritarianism (which the government vigorously denies), as well as bringing the ruling party into conflict with the country’s legal establishment and cultural elites.

Mrs Szydło’s administration took the political flak for introducing these reforms but, with the passage of the judicial reform laws at the end of last year, many of the key of elements of the government’s state re-construction programme are now in place. Mr Morawiecki is, therefore, hoping to shift the focus of debate in the second half of the government’s parliamentary term away from these controversial issues by portraying his administration as a team of technocratic experts governing efficiently, modernising an increasingly prosperous and secure country, and ensuring that ordinary Poles share in the benefits of economic growth. The reshuffle is thus an attempt to broaden Law and Justice’s appeal to more centrist, less politically committed Poles who do not reject the ruling party outright but mistrust figures such as Mr Macierewicz; as well as encouraging the country’s elites to come to terms with the government. Indeed, some commentators have suggested that the reshuffle may be part of a more ambitious, long-term project of transforming Law and Justice into a pragmatic conservative grouping; although others dismiss it as simply a tactical pivot similar to the one that the party performed so successfully in the run-up to the 2015 elections.

Part of the motivation for the reshuffle was also to improve relations with the EU political establishment. Law and Justice has found itself in conflict with the EU institutions and major European powers on several fronts. It refuses to implement an EU plan for the compulsory relocation of Middle Eastern and North African migrants, which it argues would force multi-culturalism upon Poland and threaten its national security. It disputed a European Court of Justice order to stop logging in the Białowieża Forest, arguing that it was only removing trees on public safety grounds. In December, Poland also became the first EU state to have a so-called Article 7 procedure launched against it following criticisms from the European Commission that a dispute over appointments to and the functioning of the country’s constitutional tribunal, and the government’s judicial reform programme, posed a threat to the rule of law; a charge that Law and Justice vigorously denies. For many commentators, Mr Waszczykowski and Mr Szyszko symbolised the government’s poor relations with the Commission and their dismissal was prompted by a desire to give the government a more EU-friendly image.

Pivoting to the centre carries risks

Opinion polls suggest that the reshuffle has proved very popular and Mr Morawiecki is enjoying a political honeymoon. A January survey by the CBOS polling agency found that 61% of respondents evaluated the reshuffle positively compared with only 9% who viewed it negatively (30% were undecided), and 54% were pleased that Mr Morawiecki had taken over as prime minister while only 20% were dissatisfied (26% undecided). The ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows Law and Justice averaging 48% support (in the autumn 2015 election it secured 37.6%) compared with only 24% for Civic Platform, and other opposition parties on single figures.

However, Law and Justice’s change of strategy also carries risks. While the government has enjoyed the fruits of strong growth and low unemployment it also needs to deliver on its ambitious investment and modernisation agenda, while an economic downturn would make it difficult to finance the very costly social spending programmes that have been crucial to its continued popularity. It may also prove impossible to avoid divisive political conflicts. For example, the Polish parliament is currently debating a civic initiative to further tighten the abortion law. Most Law and Justice deputies support this but in autumn 2016 large protests forced the ruling party to vote down a previous attempt to introduce greater restrictions. Moreover, while Mr Morawiecki indicated that Warsaw is open to negotiations with the Commission, he has also made it clear that his government will not abandon, or even significantly modify, its judicial reforms, nor its opposition to compulsory migrant relocation. Two important tests for the Morawiecki administration will be: whether Poland can find six countries prepared to block the Article 7 procedure at the first stage of voting in the Council of Ministers (probably at the end of February); and if the new EU budget, negotiations on which begin later this year, will link disbursal of funds to the functioning of a member state’s judiciary.

More broadly, there is a risk that Law and Justice’s pivot to the centre could alienate a section of its core electorate and supporting media, notably the milieu clustered around the Catholic ‘Radio Maryja’ broadcaster which is very influential among Poland’s ‘religious right’. Many of the party grassroots were already disorientated by the fact that the popular and folksy Mrs Szydło was replaced by Mr Morawiecki, a technocratic former bank chief executive. However, with its support at record levels, Law and Justice is counting on the fact that Mr Macierewicz and the Radio Maryja milieu will reject the idea of a right-wing breakaway party as politically suicidal. Moreover, even if they do not always understand the rationale underpinning his political manoeuvres, the great bulk of the party’s core supporters still trust Mr Kaczyński’s instincts and see his continued leadership of the governing camp as the best guarantee of its right-wing bona fides.

Softening the government’s image, but not changing policy

Mr Morawiecki’s radical reshuffle has significantly changed the shape and direction of the Law and Justice government, with a much greater emphasis on economic modernisation and political stabilisation both domestically and internationally. The party’s apparent pivot to the moderate technocratic centre has also made it more difficult for the weak and divided opposition to develop an effective strategic response and sustain its narrative that a divisive and illiberal government is isolating Poland. At the same time, while Mr Morawiecki clearly has a different governing style from his predecessor, the new administration appears just as committed to pursuing the core elements of Law and Justice’s programme of so-called ‘good change’ (dobra zmiana). The adjustment has so far been more about softening the government’s image and presenting its reforms more attractively rather than any substantive policy change.

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How will the European Commission triggering Article 7 affect Polish politics?

Last month Poland became the first EU member state to have an Article 7 rule of law procedure launched against it, although the country’s right-wing government argues that its judicial reforms are constitutional and necessary. While sanctions appear extremely unlikely, the domestic political impact will depend on whether Poles accept the opposition’s argument that the government is isolating Poland internationally, or the ruling party’s that it is defending national sovereignty against EU interference in the country’s internal affairs.

A major escalation of an ongoing conflict

At the end of December, in a major escalation of a conflict with Poland that has been rumbling on for the past two years, the European Commission recommended triggering the so-called Article 7 procedure, the first ever against an EU member state. This followed its criticisms of the Polish government – led, since autumn 2015, by the right-wing Law and Justice (PiS) party – as posing a threat to the rule of law. The Commission’s original concerns stemmed from a dispute over appointments to, and the functioning of, Poland’s constitutional tribunal, but since last July escalated to include the government’s controversial judicial reform programme. The Commission argued that, as a result of a set of 13 laws passed by the Law and Justice-dominated parliament, the ruling party had undermined the independence of the judiciary which meant that the constitutionality of the country’s legislation could no longer be guaranteed.

Warning of a drift towards authoritarian rule, Poland’s main opposition groupings – led by the liberal-centrist Civic Platform (PO), the governing party from 2007-15 – and the legal establishment, have accused Law and Justice of failing to respect the Constitution and separation of powers. They argue that the government’s judicial reforms and other actions have subverted democratic values by allowing the ruling party to pack the courts with its own hand-picked nominees. In addition to launching the Article 7 procedure, the Commission also confirmed that it would refer Poland to the European Court of Justice for an alleged infringement of EU law, arguing that legislation changing the way that the heads of lower district and appeal courts are appointed gives the Polish justice minister too much power and is discriminatory because it introduces separate retirement ages for men and women

The government’s supporters responded by saying that Poland was as committed to the rule of law as any other EU country and that its actions were in line with the Polish Constitution. They argued that judicial reforms were sorely needed because Polish courts were too slow, inefficient and tolerated frequent irregularities. Law and Justice believes that, following the country’s flawed transition to democracy in 1989, the judiciary, like many key institutions, was already politicised and expropriated by a well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy. They also accused the Commission of double standards arguing that the Polish government’s reforms were in line with practices that existed in many other established Western democracies, and that Brussels was biased and acting on political motives because Law and Justice has challenged the interests of the major EU powers and is out of favour with the socially liberal and cosmopolitan policies supported by the EU political establishment.

Law and Justice won’t back down

The Commission’s latest move shifts the ‘rule of law’ dispute to the EU inter-governmental level but no firm date has been set for member states to vote on its recommendation, allowing some space for diplomatic efforts. The Commission has also said that if the Polish government reverses its legislative changes within the next three months it could rescind its decision. However, within hours of the Commission’s announcement Poland’s Law and Justice-backed President Andrzej Duda signed into law the two judicial reform bills whose earlier approval by the Polish parliament Brussels felt marked a point of no return. One of these potentially ended the tenure of around 40% of current Supreme Court judges by lowering their retirement age from 70 to 65, with the President deciding if their terms could be extended. The other reformed the National Judicial Council (KRS), a body that selects judges and decides how the courts are run, so that most of its members were elected by parliament rather than judicial bodies.

Earlier last month, Poland’s finance minister and respected former banker Mateusz Morawiecki was also appointed as the country’s new prime minister partly in the hope that he would be able to ‘re-set’ Warsaw’s relations with the EU political establishment. Due to his excellent international business contacts, Mr Morawiecki understands the mentality of Western elites and generates their respect for his competence and professionalism. However, judicial reform is one of the most important elements of Law and Justice’s programme to radically re-construct the Polish state. Although Mr Morawiecki’s greater familiarity with diplomatic niceties should enable him to develop better contacts with Western politicians, the new prime minister’s statements since his appointment make it clear that, other than adopting a somewhat gentler rhetorical tone, the government does not intend to change course even if this brings it into conflict with the EU elites.

No sanctions, but Poland marginalised?

Member states are likely to vote on whether to enact Article 7 at an EU General Affairs Council meeting scheduled for the end of February. In the first stage of the procedure the decision on whether the Polish reforms constitute a ‘clear risk of a serious breach of rule of law’ requires the support of 22 of the EU’s remaining 27 members (Poland is excluded from the vote) to move to the next stage. Given that France and Germany have already signalled that they will back the Commission, most other EU states are likely to fall into line, so blocking the Article 7 procedure at this stage would be a huge diplomatic triumph for Law and Justice and Mr Morawiecki. However, a subsequent vote to trigger sanctions against Poland – including, in the worst-case scenario, suspending the country’s European Council voting rights – requires unanimity and the Hungarian government, for one, has made it clear that it will oppose such a move.

Nonetheless, Law and Justice’s critics argue that even if no sanctions are eventually imposed the Article 7 procedure will further damage Poland’s international reputation and undermine the government’s ability to advance the country’s interests on other issues such as the distribution of EU funds when states begin negotiating the 2021-27 EU budget later this year. Poland is the main beneficiary from these fiscal transfers but the current EU budget was always likely to be the last from which the country would gain so substantially, given that British withdrawal from the Union will reduce the overall level of the funding available. At the same time, some EU leaders and officials have argued that the disbursal of Union funds should reflect the extent to which countries are felt to uphold so-called ‘European values’, including democracy and the rule of law. For its part, Law and Justice argues that, as EU budgets require unanimity, Poland can prevent any attempts to develop such linkages, although some commentators say that this can be by-passed.

Support for the EU is broad but shallow

The question of whose interpretation of the meaning of the dispute between Poland and the EU political establishment Poles come to accept will be one of the most important arenas of political conflict in the country’s politics over the coming months. While they are extremely critical of the way that the courts and legal institutions function in their country, Poles are much more divided on the merits of Law and Justice’s specific judicial reforms. They are also, on the face of it, overwhelmingly pro-EU: a December 2017 survey by the CBOS polling agency found that 85% of respondents supported their country’s EU membership compared with only 8% against. However, Poles are more wary about the idea of EU institutions becoming involved in the country’s internal affairs and are likely to be extremely hostile if they perceive that the government’s domestic political opponents are trying to settle Polish disputes in international forums. Many are also sympathetic to Law and Justice’s claim that the Commission’s criticisms of the Polish government are motivated, in part at least, by Warsaw’s rejection of what they see as the hegemonic EU liberal-left consensus in the moral-cultural sphere that undermines Poland’s traditional values and national identity.

Moreover, some commentators argue that Polish public support for the EU is very broad but also rather shallow, with Poles increasingly instrumental in their attitudes towards membership. A key motivation for their voting overwhelmingly for EU accession in a 2003 referendum was the idea it represented a historical and civilisational choice to re-unite with the West and the culmination of the post-communist democratisation process. However, this idea of EU membership as a natural and obvious civilisational choice has been undermined in recent years due to an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This issue surfaced in the reaction of Poles (and other Central Europeans) to the EU’s compulsory migrant relocation scheme developed in response to the 2015 migration crisis. An overwhelming majority of Poles oppose accepting refugees (never mind economic migrants) from Muslim countries even if Poland is threatened with financial penalties by the EU for refusing to do so. Poles, therefore, view the European integration process increasingly in terms of a cost-benefit analysis with the extent to which Poland benefits from EU fiscal transfers obviously a key element of this.

Marginalising Poland or defending national sovereignty?

How the triggering of Article 7 will play out in Polish domestic politics, therefore, depends critically on who frames the terms of the debate on this issue most successfully, and particularly whose arguments Poles find most convincing as to who is to blame for (the threat of) EU sanctions or reduced fiscal transfers. The government’s opponents will obviously continue to argue that Law and Justice’s dispute with the EU political establishment is about fundamental constitutional issues because the ruling party has violated basic liberal democratic norms. But they will also try to present Poland’s future relationship of the EU as one of the key issues at stake. They will argue that, at worst, Law and Justice is preparing the ground for ‘Polexit’: Poland following the UK’s example and leaving the EU. But they will also say that, even if the country formally remains an EU member, it could become so marginalised within the Union’s decision making structures that a process of ‘slow motion’ or ‘de facto’ Polexit will develop: with Poland progressively weakening its ties with the Union in a way that undermines its economic and geo-political interests.

The government’s supporters will, on the other hand, continue to vigorously deny that Law and Justice has any plans for ‘Polexit’, while framing the Article 7 debate in terms of a defence of national sovereignty. They will argue that Poland’s dispute with the Commission is a political one and not about the rule of law, while presenting the government as the defender of Polish national interests against the EU political establishment’s interference in the country’s domestic affairs. This narrative not only solidifies Law and Justice’s support among its core voter base, it also potentially casts the government’s opponents in a negative light in the eyes of less politically committed Poles. While the government’s opponents are keen to use their close links with the EU political elites, who share their dislike of Law and Justice, to exert pressure on the ruling party by presenting it as isolated within the Union, this also leaves them open to criticism that they are themselves undermining Poland’s international standing by involving Union institutions in domestic political disputes. If the government can persuade Poles to interpret the Article 7 procedure in this way then playing the ‘rule of law’ card could end up backfiring on both the EU political establishment and Law and Justice’s domestic opponents.

How will a Morawiecki premiership change Polish politics?

By appointing a respected former banker as prime minister, Poland’s right-wing ruling party is hoping to re-focus the government’s priorities on to economic development, and improve the country’s international standing. However, the appointment carries risks and could alienate the party’s core supporters while failing to broaden its electoral appeal and improve the effectiveness of government decision making. Although he will be more comfortable in international circles than his predecessor, the new prime minister is unlikely to alter the government’s policies in a way that fully satisfies the EU political establishment.

Popular prime minister, dysfunctional government?

Poland’s ruling right-wing Law and Justice (PiS) party has taken a huge political gamble replacing incumbent prime minister Beata Szydło, who held the post since it won the autumn 2015 parliamentary election, with finance minister Mateusz Morawiecki. Mrs Szydło will remain in government as one of Mr Morawiecki’s deputies responsible for social policy but without an official ministerial portfolio. The move is part of a broader reshuffle, and other ministerial changes are expected in January. It comes at the half-way point in the four-year parliament ahead of a series of elections in the next three years: local government in autumn 2018, European Parliament in summer 2019, parliamentary in autumn 2019, culminating in the summer 2020 presidential poll.

The switch came following a turbulent few weeks of speculation about Mrs Szydło’s future. Originally, many commentators assumed that she would be replaced by Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities. In fact, with the government retaining widespread support and Mrs Szydło Poland’s second most popular politician (after Law and Justice-backed President Andrzej Duda), she appeared to be a strong asset for the ruling party. As prime minister, Mrs Szydło proved herself to be a tough and determined politician who made few mistakes under fire but also had a common touch that many ordinary Poles could identify with. She brought a sense of calm and stability to the turbulent political scene and, on more than one occasion, used her formidable communication skills to rescue the government’s image and reputation. Moreover, Mr Szydło was also loyal to the ruling party, knowing the limits of her power and never attempting to use the premiership to challenge Mr Kaczyński’s authority.

However, from the outset Mr Szydło was surrounded by powerful ministers whom she only had a limited say in appointing, and Mr Kaczyński grew frustrated at her inability to tackle conflicts between various government factions. The existence of an influential power centre outside of the government also meant that the Law and Justice leader was constantly being called upon to resolve personnel and policy disputes, lengthening the decision making process and delaying the implementation of government projects.

Some commentators and party leaders argued that the best way to increase the coherence and transparency of government decision making was for Mr Kaczyński himself to take over as prime minister. It was also felt that, with the Law and Justice leader at the helm, the government would be in a much better position to arrange its relations with the President, who has been engaged in ongoing conflicts and turf wars with defence minister Antoni Macierewicz and justice minister Zbigniew Ziobro. Moreover, since he vetoed key elements of the government’s flagship judicial reforms in July, Mr Duda has been trying to carve out a more independent and assertive role for himself within the governing camp.

Nonetheless, although Mr Kaczyński is extremely popular with the party’s supporters, the Law and Justice leader is a polarising figure and one of the country’s least trusted politicians among more moderate voters. Assuming the premiership would also have left Mr Kaczyński with little time to spend on day-to-day party management which, with no natural successor to take on this role, could have generated further conflicts within the governing camp. With additional concerns about his age and health, appointing Mr Kaczyński as prime minister was felt to be too much of a risk

Refocusing on the economy

Mr Morawiecki’s appointment appears to represent a shift of focus from the government’s plans to radically reconstruct the Polish state and its redistributive social policy agenda towards a greater emphasis on economic modernisation and development. During its first two years in office Law and Justice has maintained high levels of popular support by delivering on the high-profile social spending pledges that were the key to its 2015 election victories. The most significant of these were: its extremely popular flagship ‘500 plus’ child subsidy programme for the first children of poorer households and every second and subsequent child in all families; and a law reversing the previous government’s deeply unpopular pension reforms, which had increased the retirement age to 67 (from 60 for women and 65 for men).

Mr Morawiecki – previously chief executive of Bank Zachodni WBK, Poland’s third largest lender in which the Spanish Santander bank is the majority stakeholder – was originally appointed as deputy prime minister in charge of economic affairs in a bid to re-assure markets and investors who were worried that the party’s expensive social promises could wreck Poland’s public finances and damage the business environment. Last autumn, he added the finance minister post to his economic development brief. In fact, although the government’s social spending programmes are very costly, the economy is performing much better than expected: growth is strong, unemployment at its lowest level for 25 years and wages have started to increase. As finance minister, Mr Morawiecki led a crackdown on tax evasion and VAT fraud that has helped to fund the government’s social welfare programmes and reduce the state budget deficit.

However, the government’s critics argue that the level of public debt remains high and increased social spending could cause serious problems if there is an economic downturn and the fiscal situation deteriorates. They also argue that growth is being driven by a short-term consumption boom rather than increased productivity and private sector investment. Mr Morawiecki is the architect of Law and Justice’s long-term economic modernisation programme and one of the key ideas behind his appointment as prime minister is that it will help Poland to better prepare for these future economic challenges and develop the conditions that will attract greater private investment.

Improving EU relations

Mr Morawiecki’s appointment is also aimed at improving Poland’s international standing. The Law and Justice government has found itself in conflict with the EU institutions and major European powers on several fronts. Arguing that the country needed to be more robust and assertive in advancing its national interests, the Law and Justice government shifted away from its predecessor’s strategy of trying to locate Poland within the so-called European ‘mainstream’ and instead attempted to build alternative alliances to counter-balance the influence of the Franco-German axis. Law and Justice has refused to implement an EU plan for the compulsory relocation of Middle Eastern and North African migrants located in Greece and Italy, which it argues is forcing multi-culturalism upon Poland and threatens national security. The government is also disputing a European Court of Justice order to stop logging in the primeval Białowieża Forest, arguing that it is only removing trees on public safety grounds.

Perhaps most significantly, the European Commission has initiated a ‘rule of law’ action under Article 7 of the European treaties, threatening the Polish government with sanctions including possible suspension of the country’s voting rights in the European Council. The Commission accuses the Law and Justice government of failing to respect the Polish Constitution and separation of powers, and undermining democracy and the rule of law, particularly in a dispute over the membership and competencies of the country’s constitutional tribunal and its planned judicial reforms. The government has defended its actions on the constitutional tribunal as necessary to restore pluralism and balance following what it claims was the illegal appointment of tribunal members by its predecessor; and its judicial reforms on the grounds that, like many Polish institutions, the legal establishment has been expropriated by an extremely well-entrenched, and often deeply corrupt, post-communist elite.

Law and Justice is hoping Mr Morawiecki will be able to ‘re-set’ relations with the EU political establishment. Due to his excellent business contacts he speaks fluent English and German, understands the mentality of Western elites, and generates respect for his competence and professionalism. One immediate challenge that Poland faces is the next EU budget round, discussions on which are due to begin in 2018. Poland is currently the main beneficiary from EU funds but the prospect of British withdrawal from the Union will reduce the size of the budget and limit the scale of these fiscal transfers in the future. At the same time, some EU leaders have argued that the disbursal of Union funds should reflect the extent to which countries are felt to uphold so-called ‘European values’, including democracy and the rule of law.

Mr Morawiecki’s appointment carries risks

However, Mr Morawiecki’s appointment also comes with substantial risks. Mrs Szydło was very popular and well-liked, particularly among Law and Justice’s core electorate. As a wealthy technocrat with a background in high finance, Mr Morawiecki is not someone whom the ruling party’s core supporters, who tend to be provincial and less well-off, would naturally identify with. With Mr Morawiecki as prime minister it will be more difficult for Law and Justice to present itself as an anti-establishment party on the side of ordinary Poles against the privileged elites, a key element of its electoral appeal to date. Mr Morawiecki was also once a member of the economic council advising former prime minister and one-time leader of the centrist Civic Platform (PO) – Poland’s governing party until the last election and currently the main opposition grouping – Donald Tusk, who is a bogeyman for many Law and Justice supporters. Most Poles are still making their minds up about the new prime minister but there is a danger that the ruling party could fail to broaden its appeal to potential new constituencies among the better-off while alienating its existing core electorate.

Moreover, it is unlikely that Mr Morawiecki will be able to deal with the government’s main structural weakness – infighting between powerful ministers entrenched in their departmental power bases – any more effectively than Mrs Szydło was able to. Mr Morawiecki’s late entry into politics means that, unlike some government members, he lacks a power base in the governing camp’s factional politics. He will not, therefore, represent a threat to Mr Kaczyński, who values political loyalty above all else and is always sensitive to potential challengers, but Mr Morawiecki will also be dependent on the Law and Justice leader to settle disagreements over key personnel and policy decisions, making it more difficult for him to govern effectively.

It is also questionable to what extent Mr Morawiecki will be able to improve Poland’s relations with the EU institutions and major powers. The source of this conflict does not lie solely in poor diplomacy and public relations – although there is no doubt that these could be improved – but in the substance of the government’s policies and decisions. However, other than his somewhat gentler rhetorical tone, there are no indications that Mr Morawiecki questions Law and Justice’s radical state reconstruction programme or policies such as its rejection of the EU migrant relocation scheme. Moreover, in spite of his image as a cool technocrat, Mr Morawiecki is genuinely determined to defend Poland against what he sees as threats to its national identity and traditional values (he would like to see the ‘re-Christianisation’ of Europe) even if this brings him into conflict with liberal-left EU cultural and political elites. Although Mr Morawiecki’s greater familiarity with diplomatic niceties should enable him to develop better contacts with Western politicians than his predecessor, he is unlikely to alter the government’s policies in a way that fully satisfies the EU political establishment.

Can Donald Tusk save Poland’s weak and divided opposition?

A scathing Twitter attack fuelled speculation that European Council President Donald Tusk is planning a return to Polish politics to head up the country’s weak and divided opposition. Although he remains a dangerous opponent for the ruling party, making a successful comeback would be a long and arduous process, and pinning its hopes on Mr Tusk could distract the opposition from the more pressing task of developing a credible and attractive political alternative.

A blistering Twitter attack

Earlier this month, Mr Tusk launched a blistering Twitter attack on the Polish government, which has been led by the right-wing Law and Justice (PiS) party since it won the autumn 2015 parliamentary election. In doing so, the European Council President fueled speculation that he is planning a return to Polish politics when his term ends in November 2019, and possibly even sooner. Mr Tusk was co-founder and one time leader of the centrist Civic Platform (PO), Poland’s main governing party between 2007-15 and currently the largest opposition grouping, and served as the country’s prime minister until November 2014.

His intervention comes at a time when relations between Poland and the EU political establishment are at a low ebb. The Law and Justice-led administration has been in dispute with the European Commission on several fronts, notably over the membership and functioning of the country’s constitutional tribunal and the Polish government’s judicial reforms. As a result, the Commission has launched a ‘rule of law’ action under Article 7 of the European treaties, threatening Poland with sanctions including possible suspension of the country’s European Council voting rights. Last month, after a heated debate the European Parliament (EP) also passed a wide-ranging resolution on the rule of law in Poland and started its own procedure aimed at triggering Article 7.

In his tweet, Mr Tusk referred to Poland’s ‘isolation’ and listed a serious of charges that the country’s opposition has leveled against Law and Justice for months, but he also drew attention to the deterioration in bi-lateral relations between Poland and Ukraine. Recently, there have been tensions between the two countries over historical issues and this month the Polish Ambassador to Kiev was summoned by the Ukrainian foreign ministry after an official from the country’s commemoration commission was prevented from entering Poland. A reference by Mr Tusk to Moscow’s interference in EU countries and the Ukraine also suggested that Law and Justice was serving Russian interests; he likened the government’s policies to a ‘Kremlin plan’.

EU representative or opposition leader?

Mr Tusk’s tweet drew an angry response from the government who accused him of having done nothing to promote Polish interests in Brussels and plotting a return to national politics after failing to carve out an active role for himself within the EU. The government insisted that it continued to strongly support Ukraine’s EU ambitions and that its entry ban on a Ukrainian citizen who, it said, holds ‘extreme anti-Polish views’ was simply a response to Kiev putting administrative obstacles in the way of Polish experts’ efforts to search for and exhume the remains of Poles killed by Ukrainian soldiers and paramilitaries during the Second World War. Law and Justice supporters robustly denied claims that the rule of law is endangered in Poland, defending the government’s actions as necessary to restore pluralism and balance to institutions which, they argue, have been expropriated by extremely well-entrenched, and often deeply corrupt, post-communist elites. They also accused Mr Tusk of having been over-conciliatory in his dealings with Moscow while prime minister.

In fact, the Law and Justice government has clashed several times with Mr Tusk and earlier this year tried unsuccessfully to block his re-appointment as European Council President. It accused him of violating the principle that EU officials should refrain from becoming involved in the political affairs of member states, and exploiting his official position to attack and undermine the Polish government. It is certainly very unusual for an EU leader to attack an incumbent member state government in this way, particularly as the Council President’s job is to prepare the summits at which key decisions are made and help to broker deals. Some commentators argued that as a result of his tweet, it will now be easier for Law and Justice to present Mr Tusk’s comments as those of a potential opposition leader rather than an impartial EU representative.

A charismatic and dangerous opponent

Mr Tusk is often mentioned as a possible challenger to Law and Justice-backed incumbent Andrzej Duda in Poland’s next presidential election, scheduled for summer 2020. In fact, Mr Tusk saw his popularity slump during the last two years of his premiership and left the country politically exhausted. Law and Justice is also trying to chip away at his credibility by holding several investigations relating to questionable actions taken when Mr Tusk was prime minister, thereby hoping to remind voters of the shortcomings and pathologies of the previous Civic Platform administration. Indeed, knowing that making a successful comeback would be a long and arduous process, it is unclear if Mr Tusk is even interested in returning to front-line Polish politics.

Nonetheless, Mr Tusk remains a charismatic political figure and dangerous opponent who should not be under-estimated because his record suggests he has excellent political antennae and an ability to read the public mood. He would be a serious contender for the Polish presidency: opinion polls generally suggest that Mr Duda has the advantage, but some show him running neck-and-neck with Mr Tusk. As the case of Jerzy Buzek – who was one of Poland’s most unpopular prime ministers in 1997-2001 but re-invented himself as a high profile Civic Platform MEP and EP President – shows, it is possible for a Polish politician to re-establish themselves on the national political scene through a high profile EU position. So far, Mr Tusk has emerged unscathed from (and possibly even strengthened by) the various investigations of his conduct as prime minister by presenting himself as the victim of a personal vendetta by Law and Justice leader Jarosław Kaczyński. Mr Kaczyński, who holds no state offices but many commentators consider Poland’s most powerful politician, holds Mr Tusk at least partly responsible for the 2010 Smolensk air tragedy that killed 96 people – including his twin brother, the then-President Lech Kaczyński – and subsequent mishandling of the crash investigation.

Poland’s weak and ineffective opposition

Indeed, Mr Tusk’s latest move is particularly significant given that Poland’s weak and divided liberal and centrist opposition has so far failed to mount an effective challenge to Law and Justice. As the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows, Law and Justice is averaging 43% support compared with only 23% for Civic Platform, 10% for the anti-establishment ‘Kukiz ‘15’ grouping, and 9% for the smaller liberal ‘Modern’ (Nowoczesna) party. Mr Tusk’s re-entry into Polish politics is, therefore, bad news for current Civic Platform leader Grzegorz Schetyna, his one-time bitter rival for the party leadership. While Mr Schetyna is an effective political operator who has consolidated his grip on the party apparatus, he lacks Mr Tusk’s dynamism and charisma and is constantly being undermined by younger Civic Platform deputies close to the previous party leadership. An November survey conducted by the CBOS polling agency found that only 24% of respondents trusted Mr Schetyna while 46% did not, making him one of Poland’s least trusted politicians. An earlier August IPSOS survey conducted for the OKO.press portal found that only 11% of respondents wanted Mr Schetyna as Civic Platform leader compared with 52% who opted for Mr Tusk. It is not surprising that Mr Tusk is probably the only opposition figure who evokes genuine unease within the ruling party.

Moreover, although the liberal and centrist opposition enjoys close links with the EU political establishment and Western opinion forming media, many of whom share their dislike of Law and Justice, its strategy of trying to exert pressure on the government by presenting it as isolated in international institutions such as the EU has proved to be a double-edged sword. Although Poles are overwhelmingly pro-EU they are also wary of the Union becoming involved in the country’s internal affairs and critical of opposition activities that they feel could harm the national interest. So, for example, Civic Platform and other opposition MEPs were divided over which tactics to pursue in this month’s EP debate on the rule of law in Poland: anxious to capitalise on the government’s difficulties, but fearful of leaving themselves open to criticism that they were weakening the country’s international standing by using a European forum to air domestic political grievances. In the event, most of them abstained but, to the annoyance and embarrassment of the party leadership, six Civic Platform MEPs broke ranks and voted to censure the Polish government.

In fact, a more fundamental problem for the opposition is that Law and Justice’s 2015 election victory reflected widespread disillusionment with the country’s ruling elite and a strong prevailing mood that it was time for change, and most Poles do not want to see a return to the status quo ante. Meanwhile, the opposition has spent too much time focusing on constitutional issues that are too abstract for most Poles, while failing to offer a programmatic alternative on their more pressing social and economic concerns where Law and Justice is clearly more in tune with public opinion. For example, having previously argued that the government’s extremely popular flagship ‘500 plus’ subsidy programme for the first children of poorer households and every second and subsequent child in all families would place an unaffordable strain on the public finances, Civic Platform has tried to outflank Law and Justice by arguing that the programme should be extended to include every child. However, knowing that in doing so the party risks damaging its fiscal credibility Civic Platform has also suggested that it will limit entitlements by excluding parents who are not working or seeking work. This has left the party open to the charges of opportunism while simultaneously creating uncertainty among voters favouring greater social welfare spending as to whether Civic Platform is really committed to maintaining the programme. If it pins too many hopes on Mr Tusk returning, then the opposition could waste time waiting for a saviour who may never come while failing to get to grips with the more pressing task of developing a credible and attractive political alternative to the ruling party.

The 2018 local elections will be crucial

The next major test for the opposition will be the autumn 2018 local elections which are likely to determine Mr Schetyna’s fate. Civic Platform has the advantage that – in addition to Poland’s 16 regional assemblies where elections are fought on strict party lines (and all but one of which are currently controlled by the opposition) – the main focus will be on the results of the mayoral contests in Poland’s largest towns and cities, where Law and Justice is relatively weak. The ruling party is hoping to amend the electoral law so that it favours larger political groupings, which should encourage the formation of alliances among the opposition parties. However, rather than negotiating local or national electoral co-operation agreements Civic Platform’s strategy appears to be based on forcing the smaller opposition parties to support its mayoral candidates. This appears to have worked in Warsaw where the ‘Modern’ candidate withdrew in favour of the Civic Platform nominee; although this has been questioned by ‘Modern’s’ new, more assertive leader Katarzyna Lubnauer. However, if Civic Platform performs badly then the clamour for Mr Tusk’s return will intensify and he may even be tempted to cut short his Council presidency and return to lead the opposition into the next parliamentary election, scheduled for autumn 2019. It is too early to tell if Mr Tusk is actually planning such a comeback, but this month’s Twitter intervention was the strongest indication to date that he is.

Why is Poland’s Law and Justice government so popular?

In spite of the fact that it has come under heavy criticism from its political opponents for allegedly undermining democracy and the rule of law, the popularity of Poland’s right-wing government is at record levels. It has delivered on its high-profile social spending pledges, strongly opposed the EU’s very unpopular migrant relocation scheme, and many Poles feel that it deserves credit for at least trying to tackle the shortcomings of the Polish state. With the opposition failing to mount an effective challenge, the ruling party’s greatest threat comes from the risk of arrogance and complacency among its own supporters.

Record levels of support

Poland’s government – led, since its autumn 2015 election victory, by the right-wing Law and Justice (PiS) party – has come under heavy fire from its political opponents who have accused it of: creeping authoritarianism and illiberalism; failing to respect the Polish Constitution and separation of powers; and undermining democracy and the rule of law in its approach to the judiciary, media, public appointments and civic rights. Thousands of Poles have participated in anti-government protests and the Law and Justice administration has faced harsh criticism from the EU political establishment and much of the Western opinion-forming media. The European Commission has launched a ‘rule of law’ action under Article 7 of the European treaties, threatening the Polish government with sanctions including possible suspension of the country’s voting rights in the European Council.

However, the government’s supporters have robustly denied these allegations, defending its actions as necessary to restore pluralism and balance to institutions which, they argue, have been expropriated by extremely well-entrenched, and often deeply corrupt, post-communist elites. Moreover, in spite of this wave of criticism, Law and Justice has maintained high levels of public support and during the last couple of months the party’s popularity reached record levels. As the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows, Law and Justice has a clear poll lead averaging 43% support (in the autumn 2015 election it secured 37.6%) compared with 23% for the centrist Civic Platform (PO), Poland’s ruling party between 2007 and 2015, 10% for the anti-establishment ‘Kukiz ‘15’ grouping, and 9% for the liberal ‘Modern’ (Nowoczesna) party. An October survey by the CBOS polling agency also found that that, at 44%, the number of government supporters was at its highest level since Law and Justice took office; 27% were opposed and 26% neutral.

Delivering on social spending pledges

Why is the ruling party so popular? Perhaps most importantly, the government has delivered on several of the high-profile social spending pledges that were the key to Law and Justice’s 2015 election success. The most significant of these were: its extremely popular flagship ‘500 plus’ child subsidy programme for the first children of poorer households and every second and subsequent child in all families; and a law reversing the previous government’s deeply unpopular pension reforms, which had increased the retirement age to 67 (from 60 for women and 65 for men). The ‘500 plus’ programme in particular has had an important symbolic effect by providing a significant and clearly identifiable financial boost to many low income households who felt frustrated that they had not shared sufficiently in Poland’s recent economic growth. Many Poles feel that, while politicians have often promised to help the less well-off, Law and Justice is the first party to actually deliver on these pledges on such a scale.

Moreover, although the government’s social spending programmes are very costly, and its opponents argue that they place a massive strain on public finances, the Polish economy is performing much better than expected. Economic growth is strong, investment increasing, unemployment is at its lowest level for 25 years, wages have started to rise, and increased tax revenues have actually led to a reduction in the state budget deficit. For sure, the government’s critics argue that it is benefiting from a more general upswing in the European economy and short-term consumption boom rather than increased productivity and private sector investment. The level of public debt remains high and increased social spending could, they say, cause serious problems in the future if there is an economic downturn and the fiscal situation deteriorates. Nonetheless, Poles are more optimistic about the state of both the economy and their personal finances than they have been for many years.

Opposing enforced multi-culturalism

The vast majority of Poles also support the Law and Justice government’s strong opposition to the EU’s mandatory re-distribution quotas for Middle Eastern and North African migrants located in Greece and Italy. For example, a May 2017 CBOS survey found that 70% of Poles were against accepting refugees (never mind economic migrants!) from Muslim countries and only 25% in favour. Law and Justice understands that for many Poles the European migration crisis is an issue of huge political and symbolic importance and – in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites – they view the EU relocation scheme as a threat to national sovereignty, identity and security. Most Poles are keen to avoid the kind of cultural and security problems that they feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities. The fact that, unlike in many West European cities, there have been no Islamist terrorist attacks in Poland has increased Poles’ sense that they live in a relatively safe country and fear that EU-imposed multi-culturalism threatens their security.

Moreover, although Poles are still overwhelming pro-EU they are more divided over whether the Union’s institutions should become involved in the country’s internal affairs. Many are sympathetic to Law and Justice’s claim that the Commission’s criticisms of the Polish government are motivated, in part at least, by Warsaw’s rejection of enforced multi-culturalism and, more broadly, of what they see a hegemonic EU liberal-left consensus in the moral-cultural sphere that undermines Poland’s traditional values and national identity. Interestingly, a June 2017 poll conducted by the IBRiS agency for the ‘Polityka’ journal found that 51% of respondents actually supported leaving the EU if this was the only way to prevent Poland from being forced to admit Muslim migrants.

A weak and ineffective opposition

Poland’s liberal and centrist opposition has also failed to mount an effective challenge to Law and Justice. Although many Poles have misgivings about the government’s approach to constitutional issues and civic rights, the strategy of so-called ‘total opposition’, based on exerting pressure through a combination of street protests and international influence, has proved largely ineffective. The opposition has spent too much time focusing on issues that are too abstract for most Poles, while failing to offer an attractive alternative on their more pressing social and economic concerns where Law and Justice is clearly more in tune with public opinion. While he is an effective political operator who has consolidated his grip on the Civic Platform apparatus, party leader Grzegorz Schetyna lacks dynamism and charisma and is constantly being undermined by younger deputies who were close to the previous party leadership. At the same time, a series of gaffes and public relations disasters have allowed government supporters to portray ‘Modern’ leader Ryszard Petru as an over-promoted political lightweight.

Moreover, Law and Justice’s election victory also reflected widespread disillusionment with the country’s ruling elite and a strong prevailing mood that it was time for change, and most Poles do not want to see a return to the status quo ante. Although he was not in the party’s inner circle for a number of years before becoming leader, for many voters Mr Schetyna is still associated in the public mind with the previous, discredited Civic Platform administration. The government has also made it difficult for Mr Schetyna’s party to disassociate itself from the negative legacies of its earlier period in office. For example, a special parliamentary commission investigating the 2012 Amber Gold pyramid scheme scandal, as a result of which thousands of Poles lost their savings, has revealed the inadequacies of the state’s oversight systems on Civic Platform’s watch. Similarly, Warsaw mayor, and one of Civic Platform’s deputy leaders, Hanna Gronkiewicz-Waltz has also caused the party embarrassment by refusing to appear before a special government-appointed verification commission investigating the so-called ‘reprivatisation scandal’: irregularities in the return of properties in the capital confiscated under communist rule.

Paradoxically, although it frustrated a key element of the government’s legislative programme, Law and Justice-backed President Andrzej Duda’s July vetoes of two controversial flagship judicial reform bills may also have helped the ruling party, in the short-term at least. By taking the wind out of the opposition’s sails and focusing public attention on debates within the governing camp, the presidential vetoes have both marginalised, and highlighted the weakness and ineffectiveness of, the government’s opponents. However, the political ambitions and emotions involved here may be difficult to contain within manageable boundaries and there is a danger that, if this political conflict between the President and ruling party escalates out of control, it could lead to ongoing mutual recriminations within – and even, in the worst case scenario, the implosion of – the governing camp.

Arrogance and complacency are the greatest risks

Some commentators have argued that opinion polls may be over-estimating Law and Justice’s support, or that the party should be performing even better given the state of the economy and level of social transfers. However, the fact that its polling surge has come later in the parliamentary term, rather than as a post-election ‘bounce’ that newly elected parties often enjoy, suggests that it is more deeply rooted. Indeed, even if they disagree with some specific government measures many Poles still feel that Law and Justice deserves credit for at least trying to tackle some of the apparently intractable problems with, and shortcomings of, the Polish state which had been ignored by previous governments. For example, even many of the government’s critics have praised its attempts to seek redress for ordinary citizens who lost out as a result of the Warsaw reprivatisation scandal. Law and Justice has thus been very effective at convincing a large number of Poles that, for all its faults, it is at least attempting to make the state more responsive and citizen-friendly and prevent it from being hi-jacked by well-connected elites and special interests. An important element of this is what some commentators have termed the ‘re-distribution of prestige’, whereby many ordinary Poles who previously felt themselves to be second-class citizens have started to regain a feeling of dignity and feel that their government is finally trying to restore an elementary sense of justice and moral order.

In fact, apart from the risk of escalating conflicts within the governing camp, the greatest threat to Law and Justice probably comes from the danger of its own activists succumbing to the kind of arrogance and complacency that led to the downfall of its predecessors, especially if they are seen increasingly not to live up to the ethical standards of a party that claims to stand for the moral renewal of the Polish state. So far, the negative publicity surrounding questionable appointments to state-owned companies and agencies, the awarding of contracts to political allies, and appropriation of state resources for partisan ends, has not damaged the ruling party to any great extent; its supporters still regard these as the occasional lapses of a generally honest party. However, experience suggests that an accumulation of apparently minor incidents can gradually chip away at a governing party’s credibility so that when a more serious, high profile scandal emerges it can act as a tipping point and shift the public mood very quickly. In spite of recent mishaps, Law and Justice can be grateful that it is still some way off reaching that tipping point.

How will relations between Poland’s President and ruling party develop?

The Polish President’s decision to veto the government’s flagship judicial reforms was part of a broader move for greater autonomy from the ruling party. He clearly gains from highlighting his independence, while focusing public attention on debates within the governing camp also marginalises Poland’s weak opposition. But conflicting ambitions and emotions could make it difficult to contain competition between the President and ruling party within manageable boundaries.

Unexpected judicial reform vetoes

Although he was elected as candidate of the ruling right-wing Law and Justice (PiS) party, at the end of July, in a dramatic and surprising move, Polish President Andrzej Duda vetoed two controversial laws overhauling the country’s Supreme Court and National Judicial Council (KRS) that would have given the government significant new powers in appointing and dismissing judges. Overturning a presidential veto requires a three-fifths majority in the Sejm, the more powerful lower house of the Polish parliament, where Law and Justice only has a simple majority.

Mr Duda’s unexpected move came after the ruling party’s judicial reform proposals triggered one of the country’s sharpest political conflicts in recent years. Most of the legal establishment and opposition – led by the centrist Civic Platform (PO), Poland’s governing party between 2007-15 and now the main opposition grouping, and smaller liberal ‘Modern’ (Nowoczesna) party – strongly criticised the legislation. Warning of a drift towards authoritarian rule, they argued that the reforms undermined the constitutional separation of powers and would allow Law and Justice to pack the courts with its own, hand-picked nominees. As a consequence, there were nationwide protests in dozens of Polish towns and cities. The reforms were also heavily criticised by the European Commission which warned that it was ready to take action against Poland under the so-called Article 7 procedure, which it can invoke against EU member states where it feels there is a ‘systemic threat’ to democracy and the rule of law, if any Supreme Court judges were dismissed.

The government’s supporters, on the other hand, said that the reforms were needed to make the judiciary more accountable and ensure that it served all Poles and not just the elites, arguing that Polish courts were too slow, inefficient and tolerated frequent irregularities. Law and Justice believes that, following the country’s flawed transition to democracy in 1989, the Polish judiciary, like many key institutions, was expropriated by a well-entrenched, and often deeply corrupt, post-communist elite, which then co-opted a new legal establishment that perpetuated its legacy. The judicial elite was out of touch with ordinary citizens and operated as a ‘state within a state’ incapable of reforming itself. In these circumstances, they said, allowing elected political bodies a greater say in the functioning of the courts and appointment of judges was justified, and simply brought Poland more into line with practices in other established Western democracies.

Mr Duda’s counter-proposals

Last month, Mr Duda presented his own versions of the two vetoed laws. The original Law and Justice law to reform the National Judicial Council involved ending the terms of 15 of its 25 members and selecting their successors by a simple majority in the Sejm rather than by judges’ organisations as was the case up until now. In Mr Duda’s new draft, the majority of the Council would still be nominated by parliament but he repeated his earlier condition that they be elected by a three-fifths majority. In fact, Law and Justice had already accepted this proposal as an amendment to its earlier Supreme Court reform bill, even though it would have forced the party to negotiate Council appointments with opposition and independent deputies.

However, Mr Duda also proposed a further requirement that if, during a two month period, lawmakers could not muster the three-fifths majority then the President would have the right to select the Council members himself from among those considered by parliament. When it quickly became clear that Civic Platform and ‘Modern’ would not support the constitutional amendment required to enact this proposal, Mr Duda proposed instead that a new vote should take place to break the deadlock with each Sejm deputy only able to vote for one candidate, which would also ensure that some opposition nominees were elected. Government supporters are concerned that this will not guarantee a clear ‘pro-reform’ majority within the Council and want the final decision to be taken by a three-fifths vote in the Senate, Poland’s second parliamentary chamber where Law and Justice holds 64 out of 100 seats.

The other Law and Justice-sponsored law required all current Supreme Court members to stand down except for those re-instated by the President but only from a list approved by the justice minister, with future candidates appointed in the same way. Mr Duda proposed instead that Supreme Court judges would retire at the age of 65 with the President deciding if their term could be extended. If introduced, Mr Duda’s plan would mean that around 40% of the current Supreme Court judges would have to stand down – including its president and harsh critic of the government’s reforms Małgorzata Gersdorf, who turns 65 in November – with the rest due to retire within the next three years.

Distancing himself from the ruling party

In fact, Mr Duda has, from the outset, struggled to carve out an independent role for himself and the vetoes were the culmination of tensions between the government and a President who was tired of being side-lined. His opponents had dismissed Mr Duda as Law and Justice’s ‘notary’ as he (publicly at least) supported virtually all of its key decisions, even the most controversial ones. However, earlier this year Mr Duda dismissed his chief of staff Małgorzata Sadurska, who was felt to be too closely aligned with the Law and Justice leadership. Then, without consulting the ruling party, in May the President announced that he was initiating a national debate on whether to change Poland’s 20-year-old Constitution culminating in a consultative referendum in November 2018, the one hundredth anniversary of the restoration of Polish sovereignty at the end of the First World War.

In July, the President also vetoed a law extending the supervisory powers of regional audit chambers to give the government greater oversight over Poland’s 16 regional authorities, all but one of which are controlled by opposition parties. Then, in August Mr Duda – who, as head of state, is also commander-in-chief of the Polish armed forces – refused to approve the appointment of dozens of generals, reflecting ongoing tensions between the President and defence minister Antoni Macierewicz who had earlier blocked a key presidential military aide’s access to classified information.

Mr Duda’s knows that in order to secure re-election in 2020 he will need to attract support beyond the Law and Justice hard core and his decision to veto the government’s judicial reforms was not, therefore, a one-off but part of a broader move by the President to develop greater autonomy and independence from the ruling party. Voters appear to approve of this: surveys conducted by the CBOS polling agency last month found that Mr Duda enjoyed a 74% approval rating, easily the highest of any Polish politician, while 68% were satisfied with the way that he was performing his presidential duties; a sharp increase from 60% and 55% respectively in July.

‘Good change’ or ‘revolutionary change’?

However, by putting himself at odds with the ruling party, Mr Duda’s decision to veto Law and Justice’s flagship judicial reform laws was clearly a major turning point for his presidency and has introduced a new and unpredictable element into Polish politics. Demonstrating that he could act independently of Law and Justice leader Jarosław Kaczyński – Poland’s most powerful politician who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities – Mr Duda is trying to completely re-define his presidency and carve out an alternative power centre within the governing camp which the Law and Justice leader has to negotiate with to secure the passage of the government’s legislative programme.

Indeed, the judicial reform crisis has highlighted some of the structural weaknesses within the governing camp. Given that the President’s most significant constitutional powers are negative ones, blocking nominations and legislation, some tensions between any government and all but the most passive head of state are almost inevitable. However, while Mr Kaczyński’s position as undisputed Law and Justice leader has given the governing camp a sense of unity and stability, it has also led to a reluctance to grant Mr Duda any real autonomy for fear that this would encourage the formation of rival power centres. This meant that when Mr Duda eventually tried to develop a more independent role for himself Mr Kaczyński and the Law and Justice leadership saw this as undermining the cohesiveness of the governing camp.

In fact, although Mr Kaczyński can at times be overbearing he is also deeply pragmatic and knows that entering into an ongoing, open conflict with the President would put his long-term political project of radically reconstructing the Polish state at risk. Mr Duda is also a much less experienced politician and lacks any real independent power base within the governing camp which remains overwhelmingly loyal to Mr Kaczyński. Moreover, although some government supporters, notably allies of justice minister Zbigniew Ziobro, question the President’s commitment to the party’s programme of so-called ‘good change’ (dobra zmiana), talk of a new centre-right ‘presidential party’ is fanciful at this stage.

Indeed, Mr Duda does not want to damage, or even significantly weaken, the ruling party whose support he needs to secure his short-term political objectives (his constitutional referendum proposal will, for example, require the approval of the Senate) and longer-term re-election prospects. Indeed, the President argues that he shares the government’s broad objectives but simply disagrees about the best means of achieving them and, in some cases, how radical the reforms should be; favouring, as he puts it, ‘good change’ over ‘revolutionary change’. In terms of judicial reform, for example, Mr Duda’s proposals represent certain adjustments to, rather than a radical departure from, Law and Justice’s original plans. In other words, Mr Duda wants the Law and Justice leadership to pay more attention to his interests and develop its reforms in a more consensual way.

Containing divisions will be difficult

Mr Duda and the ruling party, therefore, have to maintain a careful balancing act. Although the President risks losing part of his political base and cannot achieve anything substantial if he moves too far away from the ruling party’s orbit, he clearly gains from highlighting his independence and autonomy. Focusing public attention on debates within the governing camp also marginalises Poland’s weak and ineffective opposition. In the case of judicial reform, for example, Mr Duda’s actions not only defused tensions and de-mobilised mass protests in the short-term, they also shifted debate onto what form the reforms should take rather than whether they should be undertaken at all. This is one of the factors explaining why public support for Law and Justice has actually increased over the last couple of months: the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys shows Law and Justice enjoying 42% support compared with only 22% for Civic Platform and only 9% for ‘Modern’.

However, although open hostility would be suicidal for all concerned, conflicting political ambitions and emotions could make it very difficult to keep political competition between the presidential camp and ruling party within manageable boundaries. Mr Duda’s vetoes were clearly a watershed and if Law and Justice and the President cannot develop an effective working relationship then the remainder of the current parliament could see ongoing political conflict, mutual recriminations and, at worst, the implosion of the governing camp. The next few weeks are likely to be crucial in determining whether this model of contained and managed political competition between its two most important elements can be sustained.

Is there any prospect of ‘Polexit’?

Its opponents accuse Poland’s right-wing government of undermining confidence in, and weakening the country’s ties with, the EU. The government’s supporters argue that the ruling party is committed to defending national interests and sovereignty within a reformed Union. Poles are still overwhelming pro-EU but this support is shallow and increasingly instrumental.

Conflicts with the EU establishment

On the face of it, Poles are overwhelmingly pro-EU. A June survey by the CBOS polling agency found that 88% of respondents supported their country’s EU membership compared with only 9% who were against. The right-wing Law and Justice (PiS) grouping, Poland’s ruling party since the October 2015 election, is committed to defending Polish interests and sovereignty robustly within the EU, especially in the moral-cultural sphere where it rejects what it sees as a hegemonic EU liberal-left consensus that it believes undermines the country’s traditional values and national identity. Law and Justice is also anti-federalist and has articulated an increasingly fundamental and principled critique of further European integration. Nonetheless, although it has been labelled Eurosceptic the dominant view within Law and Justice is still that it is in Poland’s interests to remain an EU member and reform the organisation from within. No major political grouping questions continued EU membership and the only calls for ‘Polexit’, following the UK’s example in leaving the Union, have come from fringe politicians on the radical right.

However, the Law and Justice government has found itself in conflict with the EU institutions and major European powers on several fronts. In January 2016, the European Commission initiated an unprecedented ‘Article 7’ investigation into Poland, a procedure which it can invoke against any EU member state where it feels there is a ‘systemic threat’ to democracy and the rule of law. This followed the outbreak of a bitter domestic political and legal dispute over the membership and competencies of Poland’s constitutional tribunal. The row escalated this July when the Commission asked the Polish government to justify a series of laws reforming the judiciary. Two of these were vetoed by Law and Justice-backed President Polish Andrzej Duda but the Commission nonetheless gave Poland a month to address its concerns or face the prospect of a recommendation to the European Council that sanctions be imposed which, in the worst-case scenario, could mean suspending Warsaw’s voting rights. Law and Justice rejected the Commission’s claims as biased and representing political interference in Polish domestic affairs. Unanimity is required in the Council to trigger sanctions and the Hungarian government, for one, has made it clear that it will oppose such moves. Consequently, in a separate action the Commission also launched an infringement procedure against Poland arguing that its judicial reforms breached EU law.

In June, the Commission initiated another EU law infringement action against Poland (together with the Czech Republic and Hungary) for its refusal to implement a plan agreed at a September 2015 EU summit on the compulsory relocation of Middle Eastern and North African migrants located in Greece and Italy. This proposal was accepted by Law and Justice’s predecessor, the centrist Civic Platform (PO) which was Poland’s ruling party between 2007-15 and is currently the main opposition grouping. Although Law and Justice was against the EU plan when in opposition, it initially agreed to implement it but then suspended the process arguing that procedures for vetting migrants were insufficient to guarantee Polish security. In July, the Polish government also refused to implement a European Court of Justice order to stop logging in the primeval Białowieża Forest, arguing that it was acting in line with the injunction because it was only removing trees affected by a plague of spruce bark beetles on public safety grounds.

Poland’s clashes with the EU institutions have been one of the factors contributing to a worsening of its already-strained bi-lateral relations with the main European powers. Last month, French President Emmanuel Macron accused the Polish government of isolating itself within the EU by undermining European solidarity and democratic values. Mr Macron’s remarks came as he omitted Poland (and Hungary) from a trip to central and Eastern Europe to mobilise support for new EU rules which would limit the rights of temporary (so-called ‘posted’) workers, which Warsaw says will hit Poles employed in Western Europe particularly hard. At the same time, German Chancellor Angela Merkel, who had previously kept a low profile in the ongoing row over the Article 7 procedure, also appeared to be moving closer towards supporting the Commission more openly on this issue.

Slow motion ‘Polexit’ or defending Polish interests?

The government’s opponents, Civic Platform and the smaller liberal ‘Modern’ (Nowoczesna) grouping, argue that Law and Justice has so marginalised Poland within the EU’s decision-making structures that the Union will be much less engaged in the country’s future development. They warn that Poland could end up on the EU’s periphery as the major European powers have signalled that they favour a ‘multi-speed’ Europe with the locus of decision-making and integration likely to develop even more around the Eurozone hard core. Although it has not ruled out Eurozone accession in principle, Law and Justice argues that, given the single currency’s huge problems, it cannot envisage any point in the foreseeable future when it would be advantageous for Poland to adopt the Euro. Drawing analogies with the process that led to the UK’s June 2016 Brexit referendum, the government’s critics argue that by mobilising Euroscepticism for short-term domestic political advantage and treating every action by EU institutions as a hostile one, Law and Justice could bring about a slow motion ‘Polexit’ by progressively undermining confidence in, and weakening Poland’s ties with, the Union.

The government’s supporters respond that Law and Justice remains strongly committed to Polish EU membership, an argument that most Poles appear to accept: a March-April CBOS survey found that only 17% of respondents thought that the government wanted ‘Polexit’. However, Law and Justice does want a fundamental re-think of the trajectory of the European project to bring the EU back to its original role as a looser alliance of economically co-operating sovereign nation-states with a more consensual decision making process. The government’s supporters argue that it has found itself in conflict with the EU establishment because it has been robust and assertive in defending and advancing Poland’s national interests within the Union. Law and Justice has shifted away from its Civic Platform-led predecessor’s strategy of trying to locate Poland within the so-called European ‘mainstream’ and prioritising the development of close relations with the main EU powers, especially Germany. Rather, the party argues that Poland needs to form its ‘own stream’ within the EU by, for example, building alternative alliances with central and East European post-communist states to counter-balance the influence of the Franco-German axis. They cite US President Donald Trump’s July visit to Poland, his first stop in Europe on only his second overseas trip since assuming office, as an implicit endorsement of Law and Justice’s new approach. As well as making a keynote speech praising Poland as a key American ally, Mr Trump addressed a Warsaw meeting of the so-called ‘Three Seas Initiative’, a Polish-led scheme to develop co-operation and solidarity among East European states.

EU support is shallow and increasingly instrumental

Moreover, Polish public support for the EU appears to be very broad but also rather shallow with many Poles critical of attempts to deepen European integration in a number of areas. For example, a March-April CBOS survey found that 72% of respondents were against Polish adoption of the Euro with only 22% in favour. The same survey found that 43% of Poles felt that defending the independence of member states should be given priority compared with 31% who favoured limiting national sovereignty to ensure the EU’s effectiveness.

Poles also appear to be increasingly instrumental in their approach towards EU membership. A key motivation for their voting overwhelmingly for Poland’s EU accession in a 2003 referendum was the idea it represented a historical and civilisational choice to re-unite with the West and the culmination of the post-communist democratisation process. One of the main reasons why levels of popular support for the country’s EU membership remained so high was that many Poles, especially among the older generations, saw the European integration process as part of a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually.

However, this idea of EU membership as a natural and obvious civilisational choice has come under strain in recent years due to an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This is particularly evident in the sphere of moral-cultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites. This issue surfaced in the contrasting reactions of Poles (and other Central Europeans) to the European migration crisis. A May 2017 CBOS survey found that 70% of Poles were against accepting refugees (never mind economic migrants!) from Muslim countries and only 25% in favour; with 65% still opposed even if Poland was threatened with financial penalties. Poland is an overwhelmingly Catholic country with very few ethnic minorities which has had little experience of the modern migrations that have transformed Western Europe. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities.

Polish support for EU membership is, therefore, driven increasingly by the tangible material benefits that the Union is felt to deliver, but there are signs that these will be more limited in the future. Among these perceived benefits are the sizeable fiscal transfers that the country receives, particularly EU regional aid of which Poland is currently the largest beneficiary and many Polish commentators see as crucial to its economic modernisation. The current EU budget, which runs until 2020, was always likely to be the last from which Poland would benefit so substantially and Brexit will almost certainly limit the scale of these fiscal transfers even further in the future. Another main pillar of support for EU membership was the ability that it afforded Poles to travel to and work in Western Europe. However, concern about un-controlled mass EU migration was an important driver of support for Brexit and, as Mr Macron’s proposal to limit the rights of ‘delegated’ workers shows, there will almost certainly be more attempts to restrict Poles’ access to labour markets in other EU countries. Supporters of EU membership point to the importance of Polish access to the single market for trade and attracting inward investment but this argument may be too abstract for Poles to grasp. Moreover, while many feel that the country’s geo-political situation requires membership of Western international organisations, they may also conclude this is best secured through NATO rather than the EU which is not a credible military security actor.

Potential for Euroscepticism?

Although they are still overwhelmingly pro-EU many Poles, therefore, share Law and Justice’s concerns about the trajectory of the European project. Interestingly, a June poll conducted by the IBRiS agency for the ‘Polityka’ journal found that 51% of respondents actually supported leaving the EU if it was the only way to prevent Poland from being forced to admit Muslim migrants. A particularly ominous sign for Polish EU enthusiasts is that fact that the younger, post-accession generation of Poles are easily the most anti-EU demographic: a March-April CBOS survey found that 22% of 18-24 year-olds opposed EU membership compared with an average of 9% among all respondents. So while there is no imminent prospect of the government seeking, or the public supporting, ‘Polexit’ all of this creates the potential for an increase in Polish Euroscepticism in the future.

How will President Duda’s judicial reform vetoes affect Polish politics?

Poland’s President shook up the political scene when he vetoed two of the right-wing government’s flagship judicial reform bills, which had triggered one of the country’s sharpest political conflicts in recent years. By carving out an alternative power centre within the governing camp it gives him an opportunity to re-define his presidency, but having taken ownership of the issue he is now under intense pressure to deliver on judicial reform.

Judicial reform is a government priority

Poland’s ruling right-wing Law and Justice (PiS) party believes that, following the country’s flawed transition to democracy in 1989, the Polish judiciary, like many key institutions, was expropriated by a well-entrenched, and often deeply corrupt, post-communist elite, which went on to co-opt a new legal establishment that perpetuated its legacy. Judicial reform is, therefore, one of the most important elements of the party’s programme. To this end, the government proposed three key bills aimed at overhauling the country’s legal system. The first involved phasing out the terms of 15 of the 25 members of the National Judicial Council (KRS), a body that selects judges and decides how the courts are run, and selecting their successors by parliament rather than the legal profession as has been the case up until now. The government’s original proposal envisaged these new Council members being elected by a simple parliamentary majority, but was amended to three-fifths following pressure from Law and Justice-backed President Andrzej Duda, a move which would have forced the ruling party to negotiate the appointments with opposition and independent deputies.

A second bill changed the way that the heads of lower district and appeal courts are appointed giving the justice minister broad powers to replace chief judges within six months of the law coming into force; as well as requiring the random allocation of judges to cases in order to tackle what the government argued were corrupt local practices. The third proposed a new procedure for nominating Supreme Court judges requiring all of its current members to retire except for those re-instated by the President but only from a list presented to him by the justice minister (based on National Justice Council recommendations), with future candidates for appointment to the Court selected in the same way. The bill also envisaged the establishment of a new Supreme Court chamber that would make judgements on disciplinary actions against judges, following referrals by the justice minister.

Drifting towards authoritarianism or reforming an entrenched elite?

However, these reforms triggered one of the country’s sharpest political conflicts in recent years. Most of the legal establishment and the opposition – led by the centrist Civic Platform (PO), Poland’s governing party between 2007-15, and smaller liberal Modern (Nowoczesna) grouping and agrarian Polish Peasant Party (PSL) – strongly criticised the legislation arguing that it undermined the independence of the courts and constitutional separation of powers. Warning of a drift towards authoritarian rule, the government’s opponents said that, by putting judicial appointments under political control, these reforms would allow Law and Justice to pack the courts with its own, hand-picked nominees; pointing out that the Supreme Court rules on the validity of national election and referendum results. As a consequence, thousands of Poles protested against the reforms in street demonstrations and candle-lit vigils held in dozens of towns and cities.

The reforms were also heavily criticised by the EU political establishment and Western opinion-forming media, with whom the opposition enjoys close links and many of whom share their dislike of Law and Justice. The European Commission has been involved in a separate, ongoing dispute with the Polish government since January 2016 over the membership and functioning of the country’s constitutional tribunal. As the judicial reform crisis escalated, the Commission appeared to move closer towards taking further action against Poland under the so-called Article 7 procedure, which it can invoke against EU member states where it feels there is a ‘systemic threat’ to democracy and the rule of law. Moreover, in spite of the fact that the US Trump administration is a seen as one of the Polish government’s key international allies, the American State Department also raised concerns about the reforms.

The government’s supporters, on the other hand, said that the reforms were needed to make the judiciary more accountable and ensure that it served all Poles and not just the elites, arguing that Polish courts were too slow, unfair and tolerated frequent irregularities and corrupt practices. The judicial elite, they said, viewed itself as a superior ‘special caste’ out of touch with ordinary citizens, and operated as a ‘state within a state’ incapable of reforming itself. In these circumstances, allowing elected political bodies a greater say in the functioning of the courts, and the appointment of judges and their supervisory bodies, was justified. Moreover, they argued, the reforms did not necessarily impinge upon judicial impartiality as they simply brought Poland more into line with appointment practices in other established Western democracies.

Mr Duda’s shock move

However, in a dramatic and surprising move at the end of the July Mr Duda announced that he would veto the National Judicial Council and Supreme Court bills, while ratifying the law on the lower courts. In fact, from the outset of his presidency Mr Duda has struggled to carve out an independent role for himself and the vetoes were partly the culmination of tensions between the government and a President who was tired of being side-lined. Up until now, Mr Duda has been dismissed by the government’s critics as Law and Justice’s ‘notary’, having (publicly at least) supported virtually all of its key decisions, even the most controversial ones, such as its actions during the bitter and polarising constitutional tribunal dispute.

Announcing his decision, Mr Duda expressed regret that the Supreme Court bill had not been consulted more extensively before it was put to a parliamentary vote and justified his veto on the grounds that the proposed reforms vested too much potential influence over the Court’s operational and personnel decisions in the hands of the justice minister, who in Poland also functions as the chief public prosecutor. Moreover, his condition for approving the National Judicial Council bill, that its parliamentary appointees be elected by a three-fifths majority, was actually introduced as an amendment to the Supreme Court bill, so once he vetoed the latter it was difficult for him to approve the former.

Mr Duda is also aware that in order to secure re-election in 2020 he will need to appeal beyond the Law and Justice hard core and consolidate his support in the political centre. While the majority of Poles are dissatisfied with the way that the courts function, the ruling party was not able to win public support for these particular reforms, with polls suggesting that there was widespread backing for the presidential vetoes. Moreover, Mr Duda may have been influenced by the fact that the anti-government demonstrations appeared to mobilise a more diverse cross-section of the public than earlier protests, notably among young people. Indeed, the most effective opposition seemed to be organised by relatively new grassroots movements, such as the on-line ‘Democracy Action’ (AD) platform, which kept overtly party political slogans and leaders out of the limelight; although several government supporters argue that some of these were actually examples of ‘astroturfing’: orchestrated campaigns designed to look like spontaneous civic actions.

An alternative power centre in the governing camp

When announcing the vetoes, Mr Duda insisted that he supported the government’s broader objective of radically reforming the judiciary and promised to bring forward revised legislation within two months. There was some support for the President within the governing camp, notably those politicians clustered around the ‘Poland Together’ (PR) party led by deputy prime minister Jarosław Gowin, one of Law and Justice’s junior partners in the ‘United Right’ (ZL) electoral coalition. However, the vetoes were generally met with bitter disappointment within the governing camp and viewed as an act of betrayal by some of its leaders, especially those close to justice minister Zbigniew Ziobro, who is also leader of the small ‘Solidaristic Poland’ (SP) party, another Law and Justice ally.

More broadly, Mr Duda’s vetoes have introduced a new and unpredictable element into Polish politics, exposing divisions within, and undermining the cohesiveness of, the governing camp. They have shown that the President no longer considers himself to be dependent upon Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, has exercised a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities. Mr Kaczyński now has to deal with the emergence of an alternative power centre within the governing camp that he will have to negotiate with in order to secure the passage of the government’s legislative programme. Although presidential vetoes can be overturned by a three-fifths majority, this is larger than the number of parliamentary votes that Law and Justice can muster. Mr Kaczyński values political loyalty above all else but he also knows that a further escalation of the conflict with the President would be suicidal for the ruling party and that he has to work with him to keep the Law and Justice project on track.

At the same time, the opposition parties feel emboldened they were able to secure at least a partial victory and vindicated in their strategy of exerting pressure on the government through a combination of street protests and international influence (in Polish: ‘ulica i zagranica’). However, the reason that the street protests made such an impact was precisely because they appeared to be largely non-partisan, which made it difficult for the government to dismiss them as simply representing the old ruling elites. Indeed, many of those involved appeared to have little time for the current opposition leaders, who face the same problem that they did before the judicial crisis began: their inability to present an attractive alternative to Law and Justice on the social and economic issues that most voters regard as their priority. For this reason, opinion polls suggest that the crisis has not changed voting preferences with Law and Justice still comfortably ahead of the opposition.

For its part, the European Commission has shown no intention of letting up in spite of the presidential vetoes: issuing a new set of recommendations relating to the judicial reforms which, they argue, increase the systemic threat to the rule of law; and saying that it is ready to trigger Article 7 immediately if any Supreme Court judge is dismissed. However, Law and Justice has ignored previous Commission recommendations, saying that they represent political interference in Polish domestic affairs, and unanimity is required in the European Council to trigger sanctions with the Hungarian government, for one, making it clear that it will oppose such moves. In a separate action, the Commission has, therefore, launched an infringement procedure against Poland for alleged breach of EU law, arguing that the common courts law gives the justice minister too much influence on whether or not to prolong judges’ mandates and is discriminatory because it introduces separate retirement ages for men and women. This may eventually result in financial penalties being imposed on Poland but will have to be resolved in the European Court of Justice so could drag on for some time.

Under pressure to deliver

By demonstrating that he can act independently, Mr Duda’s vetoes of the government’s flagship bills reforming Poland’s legal system give him an opportunity to completely re-define his presidency. However, having taken ownership of the judicial reform issue he will now be under intense pressure to deliver. If he does not produce what the government would consider to be meaningful reforms this could alienate his right-wing political base, without necessarily expanding his support in the political centre. But while Mr Duda has drawn some short-term praise from Law and Justice’s opponents, they will quickly revert back to attacking him, especially if he ends up proposing a judicial reform package very similar to the government’s original proposals.

How is the European migration crisis affecting Polish politics?

The European migration crisis re-surfaced as a major issue last month as Poland’s right-wing government came under pressure from the European Commission to comply with the EU’s relocation scheme. However, most Poles are keen to avoid the kind of cultural and security problems that they feel West European countries have experienced through admitting large numbers of Muslim migrants. With the opposition uncertain how to respond the ruling party will continue to oppose migrant quotas vigorously and use the issue to mobilise support for the government.

Law and Justice rejects the EU relocation scheme

The migration crisis has rumbled on for the last two years since it developed as a major issue in Polish politics dividing the main parties in the run up to the most recent October 2015 parliamentary election. Along with the three other Central European ‘Visegrad’ countries – the Czech Republic, Hungary and Slovakia – the previous government, led by the centrist Civic Platform (PO) grouping, initially opposed the European Commission’s proposal for mandatory re-distribution quotas for Middle Eastern and North African migrants located in Greece and Italy. However, concerned that the country was coming across as one of the least sympathetic to the migrants’ plight, the Polish government changed its approach following the summer 2015 migration wave. Civic Platform’s EU strategy was based on trying to locate Poland within the so-called ‘European mainstream’ by presenting itself as a reliable and stable member state adopting a positive and constructive approach towards the main EU powers, so it was anxious to appear to be playing a positive role in helping alleviate the crisis. In the event, at the September 2015 EU summit Poland broke with its Central European allies and signed up to a burden-sharing plan which involved the country admitting 6,200 migrants as part of an EU-wide scheme to relocate 160,000 people in total by September 2017.

On the other hand, the right-wing Law and Justice (PiS) party, at the time the main opposition grouping, bitterly opposed the EU plan arguing that Poland should resist pressure to take in migrants. The party warned that there was a serious danger of making the same mistakes as many West European states with large Muslim communities, which could lead to admitting migrants who did not respect Polish laws and customs and tried to impose their way of life on the country. While it always supported Polish EU membership in principle, Law and Justice was a broadly anti-federalist (verging on Eurosceptic) party committed to defending Polish sovereignty, especially in the moral-cultural sphere where it rejected what it saw as a hegemonic EU liberal-left consensus that undermined Poland’s traditional values and national identity. It viewed the migrant relocation scheme as part of this wider clash of cultures which also threatened the country’s national security.

Not surprisingly, therefore, Law and Justice accused the outgoing Civic Platform government of betraying its Central European allies by taking decisions under EU pressure that undermined Polish culture and security. It argued that the figure of a few thousand migrants was unrealistic because family members would be able to join initial arrivals and that the quota would be used as a precedent to force Poland to take in additional migrants in the future. Following its October 2015 election victory, the new Law and Justice government agreed initially to implement the scheme approved by its predecessor and, as a start, accept 100 migrants. However, in April 2016 it suspended the process arguing that the verification procedures for the vetting of migrants were insufficient to guarantee Polish national security. Since then Poland (along with Hungary) has not accepted any migrants under the EU scheme.

The migration issue re-surfaces and escalates

The migration crisis re-surfaced as a major issue last month when, in a sharp escalation of its dispute with Warsaw, the European Commission decided to launch the first step of a so-called EU law infringement procedure case against Poland (together with the Czech Republic and Hungary) for its refusal to implement the relocation plan. Although the first stage of the process simply requires Poland to give a formal response to letters of notice by the middle of July, it also opens the way for prolonged legal wrangling. The case could take up to five years to resolve at the European Court of Justice and only at this point would Poland face any possible financial penalties.

However, the government’s critics argue that there could still be short-term political consequences as the Commission’s action further weakens the position of a Polish government which, they say, has become increasingly isolated within the EU since Law and Justice took office. The Law and Justice administration has, for example, been involved in an ongoing dispute with the Commission since the latter initiated a ‘rule of law’ procedure against Poland in January 2016 following the outbreak of a bitter, domestic political and legal row over the membership and competencies of the country’s constitutional tribunal. The government’s opponents say this could have a negative impact in the next EU budget round, of which Poland is currently the largest net beneficiary, and the negotiations for which are due to begin in a few months. Law and Justice argues that, as EU budgets require unanimity, Warsaw can prevent any attempts to develop such linkages, although its critics say there are ways that this veto can be by-passed.

Shortly after the Commission launched its legal probe, Law and Justice prime minister Beata Szydło also came under fire for a speech that she made at a ceremony to mark the seventy-seventh anniversary of the first Polish prisoners arriving at the Auschwitz German death camp. Mrs Szydło’s comment that ‘Auschwitz is a lesson showing that everything needs to be done to protect one’s citizens’ was interpreted by the government’s critics as a dog-whistle defence of her government’s opposition to the EU’s migrant quota plan. Earlier, during a May parliamentary debate Mrs Szydło had denounced the ‘madness’ of the European elites for failing to stand up to terrorism and argued that the recent wave of Islamist attacks in Western Europe vindicated Warsaw’s refusal to comply with the relocation scheme. However, accusing her critics of cynicism, Law and Justice denied that Mrs Szydło’s remarks at the Auschwitz commemorations in any way referred to the issue of migration.

The Law and Justice government has responded by vowing to fight the Commission’s infringement action all the way. It argued that the EU scheme was pushed through using a qualified majority vote on very weak legal foundations; Hungary and Slovakia have challenged it in a separate action which the Court of Justice is expected to give an initial ruling on within the next month. Law and Justice denounced the Commission’s move as an instance of double standards, pointing out that, although Poland and Hungary were the only countries not to have taken in any migrants under the programme, no other EU member state had so far fulfilled its commitments. The party argued that Warsaw had shown solidarity by helping to protect the EU’s external borders and allocating funds to aid victims of conflicts locally; although less than other countries, according to its critics. It also pointed out that Poland had taken in over one million migrants from war-torn Ukraine, thus easing migrant pressures on other EU countries; although the government’s critics said that these were virtually all economic migrants rather than refugees.

Different civilizational choices?

In fact, most Poles are strongly opposed to the EU migrant quota scheme. A May 2017 survey conducted by the CBOS polling agency, for example, found that 70% were against accepting refugees from Muslim countries and only 25% in favour; with 65% still opposed even if Poland was threatened with financial penalties. Poland is an overwhelmingly Catholic country with very few ethnic minorities which has had little experience of the modern migrations that have transformed Western Europe. Poles are keen to avoid the kind of cultural and security problems that many of them feel West European countries have experienced through admitting large numbers of Muslim migrants who are seen as difficult to assimilate and embedding violent extremists within their communities. Not surprisingly, therefore, Law and Justice has made the European migration crisis one of the most important issues legitimising its government. Indeed, last month ruling party-backed President Andrzej Duda proposed holding a national referendum on the issue, possibly timed to coincide with the next autumn 2019 parliamentary election.

This is important because a key motivation for Poles voting overwhelmingly to join the EU in the country’s 2003 accession referendum, especially among the older generations, was the idea that the European integration process represented a symbolic re-uniting of Poland with a Western international community of shared values that they had always considered themselves to be part of culturally and spiritually. This notion of EU membership as a natural and obvious historical and civilisational choice has, however, come under strain in recent years due to an increasing sense of cultural distinctiveness that many Poles feel towards Western Europe. This was particularly evident in the sphere of moralcultural values where Polish attachment to traditional morality and national identity stands in stark contrast to the socially liberal, cosmopolitan consensus that predominates among West European cultural and political elites. The contrasting reaction of Poles (and other Central Europeans) to the European migration crisis highlighted this and raised questions about whether they actually wanted to make the same civilizational choices as West Europeans.

Opposition uncertain how to respond

At the same time, the migration crisis has left Poland’s liberal-centrist opposition uncertain how to respond. Civic Platform, which is now the main opposition party, has undertaken dramatic political contortions on the issue trying to strike a balance between competing domestic and international pressures. On the one hand, party leader Grzegorz Schetyna was concerned to be seen to be responding to popular anxieties, so in May told a reporter that Civic Platform was against Poland accepting any refugees. Then, as it came under pressure from the strongly pro-EU liberal-left media and cultural establishment, Civic Platform rowed back saying that it was only against ‘illegal migrants’. Moreover, accusing Law and Justice of being anti-European and promoting xenophobia, Mr Schetyna’s party said that it favoured accepting a few dozen refugees as long as they were mostly women and children who were genuinely escaping armed conflict and had been vetted on security grounds.

However, one problem for Law and Justice is that a number of senior clergymen from Poland’s influential Catholic Church appear to disagree with the government’s approach towards the migration issue. This is awkward for the ruling party which presents itself as a staunch defender of Christian values and enjoys a great deal of sympathy among Catholic bishops, clergymen and Church-linked civil society organisations. One suggestion made by the Church Episcopate has been to establish so-called ‘humanitarian corridors’ for the medical treatment in Poland of a few hundred carefully selected refugees. However, although the government appears to be broadly sympathetic to this idea, it has also expressed concerns about the practicalities, specifically whether effective security controls can be implemented to vet these refugees, and has argued that it is easier to open hospitals on-site in refugee camps where more people could be treated.

Smoothing Law and Justice’s path to re-election?

Poland’s Law and Justice government has, therefore, taken an increasingly hard line against the EU’s migrant re-distribution programme and appears ready for a lengthy legal battle with the Commission over the issue. The ruling party considers the migration crisis to be of huge political and symbolic importance going well beyond the numbers involved and raising vital concerns about national sovereignty, identity and security. Knowing that the vast majority of Poles are strongly opposed to the EU scheme, and that the liberal-centrist opposition is uncertain how to respond, Law and Justice will continue to use the issue to mobilise public support and thereby, it hopes, smooth the ruling party’s path to re-election in 2019.

Has Poland’s Law and Justice government regained the political initiative?

Although Poland’s right-wing government has been on the defensive following a series of mini-crises, it has maintained a solid base of support by delivering on its key social welfare spending promises. Last month, the main opposition party lost ground as it came under much greater scrutiny, especially on the European migration crisis issue. However, even if macro-economic indicators remain positive and the government delivers policies that improve ordinary people’s living standards, Poles may still opt for a party than appears to offer them a calmer and more stable political environment.

An accumulation of mini-crises

The Polish government, led since autumn 2015 by the right-wing Law and Justice (PiS) party, has found itself on the defensive in recent months as it encountered a series of mini-crises. This began at a March EU summit when Poland was isolated in its attempt to prevent the re-election of Donald Tusk – former prime minister and one-time leader of the centrist Civic Platform (PO), the country’s governing party between 2007-15 and currently the main opposition grouping – for a second term as European Council President. Then, in April Mr Tusk was questioned by the public prosecutor about his knowledge of a co-operation agreement between Polish military counter-intelligence and the Russian security service. Mr Tusk’s arrival at Warsaw railway station, and carefully choreographed walk to the prosecutor’s office surrounded by supporters, was turned into a media spectacle giving the impression of a triumphant return to the national scene by a politician being hounded by the ruling party.

There were also disputes and divisions within the ruling party played out in the media glare rather than being resolved behind-the-scenes. For example, Law and Justice-backed President Andrzej Duda appeared to be at odds with defence minister Antoni Macierewicz following the latter’s failure to give official responses to correspondence requesting clarification of the ministry’s work in a number of areas. More broadly, stung by allegations that he is a subservient and politically partisan President, Mr Duda has (albeit rather tentatively) started to try and carve out a more independent political role for himself by, for example, expressing his concerns about a number of government measures. Opposition from the President was, for example, one of the factors that led Law and Justice to withdraw its proposal to create a two-term limit for elected local mayors, which would have operated retrospectively so that it included incumbents standing in the next autumn 2018 local polls.

Recent months also saw various controversies and scandals involving a number of government-appointed officials. In April, 27-year-old Bartłomiej Misiewicz, a former close aide to Mr Macierewicz, was forced to resign as a Law and Justice member when a special commission set up by party leader Jarosław Kaczyński ruled that he was not qualified or experienced enough to fulfil the various functions to which he had been appointed. Media reports suggested that Mr Misiewicz had been offered a huge salary and perks in the state-run Polish Armaments Group (PGZ) in spite of earlier being forced to resign as defence ministry spokesman. This was followed by the resignation of Wacław Berczyński as head of the commission re-investigating the 2010 Smolensk air crash, after he claimed to have influenced the government’s decision last year to abandon a planned deal to purchase 50 Caracal military helicopters from the French-based Airbus company, even though he had no competencies in this area and potential conflicts of interest. The allegation that Law and Justice has tolerated cronyism is particularly damaging because a fundamental element of the party’s appeal has been its claim to stand for the moral renewal of the Polish state in contrast to its scandal-ridden Civic Platform-led predecessor.

At that same time, there has been increasing pressure on the government in a number of policy areas where it has been drawn it into conflicts with various interest groups. For example, the government was heavily criticised for its failure to respond positively to a petition organised by the Union of Polish Teachers (ZNP), the main teaching union, signed by over 900,000 citizens calling for a nationwide referendum on its educational reforms. The government argues that the reforms were clearly set out in its manifesto and widely consulted, while a summer referendum would cause chaos given that they are due to come into effect when the new school year begins in September. However, the petition put Law and Justice in an awkward position, given that when in opposition it had criticised its Civic Platform-led predecessor for ignoring civic referendum initiatives.

None of these various individual mini-crises were decisive of themselves but their cumulative effect was to put Law and Justice on the back-foot and undermine the government’s credibility and morale. Indeed, even a recent spate of car accidents involving Mr Duda, Mr Macierewicz and prime minister Beata Szydło (who was hospitalised for several days as a result) allowed the opposition to portray the ruling party as a privileged caste who were not even subject to the same traffic rules as ordinary citizens; important because one of Law and Justice’s main criticisms of the previous Civic Platform administration was that it represented an arrogant and out-of-touch elite. As a consequence, opinion polls started to indicate a shrinking of Law and Justice’s previous double-digit lead, and a couple of them even showed Civic Platform overtaking the ruling party.

Delivering on social spending and the economy

In fact, the narrowing of Law and Justice’s poll lead was due largely to the consolidation of the previously fragmented opposition around Civic Platform. Indeed, the latest data produced by the ‘Pooling the Poles’ micro-blog that aggregates voting intention surveys showed that by mid-May Law and Justice had recovered and once again opened up a clear lead with 37% support (in the October 2015 parliamentary election it secured 37.6%) compared to 30% for Civic Platform. A May 2017 survey for the CBOS polling agency also found that the number of government supporters was, at 39%, at its highest level since Law and Justice took office (34% were opposed and 25% neutral).

The government has maintained a solid base of support due in large part to the fact that it has delivered on several of the social spending promises that were the key to its 2015 election victories. The most significant of these were: its extremely popular flagship ‘500 plus’ child subsidy programme for the first children of poorer households and every second and subsequent child in all families; and a law reversing the previous administration’s deeply unpopular pension reforms, which had increased the retirement age to 67 (from 60 for women and 65 for men). For their part, the government’s critics point out that there are also a number of key pledges that it has failed to implement, notably a substantial across-the-board increase in tax allowances.

Moreover, the Polish economy is also performing better than expected, with investment increasing and unemployment falling to its lowest level in 25 years. For sure, the government’s critics argue that it is benefiting from a short-term consumption boom rather than increased productivity and, although the state budget deficit is under control due to increased tax revenues, the level of public debt remains high and increased social spending could impose a future burden if there is an economic downturn. Nonetheless, policies such as ‘500 plus’ have provided a significant and clearly identifiable financial boost for many low income households frustrated that they had not shared sufficiently in earlier periods of economic growth. Interestingly, a May CBOS survey also found that 43% of respondents evaluated the economic situation positively (and only 15% negatively), the highest level since 1989.

Civic Platform under pressure

At the same time, Civic Platform has come under much greater scrutiny as Law and Justice has forced it to spell out and defend its own programmatic alternatives rather than simply criticise the government in general terms. For example, having previously argued that ‘500 plus’ would place an unaffordable strain on the public finances, the opposition grouping has tried to outflank Law and Justice by arguing that the programme should be extended to include every child regardless of family income. However, knowing that this risks damaging the party’s fiscal credibility Civic Platform has also suggested that it will limit entitlements by excluding parents who are not working or seeking work. This has left the party both open to the charges of opportunism while simultaneously creating uncertainty among voters favouring greater social welfare spending as to whether Civic Platform is really committed to maintaining the programme.

Moreover, the revival of debate around the EU migration crisis also put Civic Platform on the defensive. The Law and Justice government has taken an increasingly hard line on this issue refusing to implement a 2015 deal agreed by the previous Civic Platform-led administration whereby Poland would admit 7,000 people as part of an EU-wide scheme to relocate 160,000 Middle Eastern and North African migrants, and says that it is ready for a lengthy battle with the EU institutions if necessary. Knowing that opinion polls show three-quarters of Poles are against the EU scheme, Civic Platform leader Grzegorz Schetyna initially denied that the migration crisis was still an issue and then, when pressed by a reporter, appeared to suggest that he was against admitting any refugees. However, under pressure from the liberal-left media, Civic Platform rowed back from this and suggested instead that it was only against ‘illegal migrants’ and in favour of accepting a small number of refugees who were genuinely escaping armed conflict and had been vetted on security grounds. To add to the confusion, the majority of the party’s MEPs abstained during a May European Parliament debate on the issue.

2005 or 2007?

Civic Platform’s programmatic zig-zags came as a huge relief to Law and Justice after a series of cumulative public relations mini-crises had knocked the ruling party’s earlier momentum and self-belief. Law and Justice hopes that its social welfare policies will be a key issue determining the shape of the political debate right up to the next election. In this sense, the ruling party will be hoping the next election is a re-run of the 2005 parliamentary and presidential polls which Law and Justice won by framing the contest as a choice between its own socially ‘solidaristic’ vision of Poland and Civic Platform’s much less appealing economically liberal approach. However, ‘500 plus’ and other government social policies can only be weaponised politically if voters feel that the opposition represent a genuine threat to their continuation, and last month Law and Justice was able to create considerable doubt as to whether Civic Platform was really committed to them.

Nonetheless, although Law and Justice’s support appears to be holding steady, the nightmare haunting the party is that the next election actually becomes a repeat of the 2007 poll. Then, as the incumbent, Law and Justice mobilised its core supporters and even increased its share of the vote on the back of a strong economic performance, but ultimately lost because even larger numbers turned out to vote for Civic Platform which promised a less combative governing style. So even if the macro-economic indicators are good and Poles are pleased that Law and Justice has delivered policies that have had a visible, positive impact on their living standards, they could once again opt for a party that appears to offer them the best chance to enjoying the fruits of a strong economy and generous social welfare in a more calm and stable political environment. Regardless of whether one believes that the cause of this instability is an overly-confrontational government needlessly opening up conflicts on too many fronts or, as the government’s supporters argue, an irresponsible opposition trying to whip up hysteria, it is this potential concern among Poles that the country is in a state of semi-permanent political conflict that could be the biggest challenge facing the ruling party and key to its future prospects.