Katarina Barley interview: The Spirit of the Law

As an expert in international law and Germany – UK dual citizen, Katarina Barley’s talents are in much demand. Fortunately for the European Parliament, areas of expertise are also her passions. Andreas Rogal tries to find out what drives her.
Katarina Barley | Photo credit: Giancarlo Rocconi

By Andreas Rogal

Andreas Rogal is a senior journalist at the Parliament Magazine

26 Oct 2021

Parliament’s Fourth Vice-President was a little late to our interview date, because a meeting of her political group - the Progressive Alliance of Socialists and Democrats (S&D) - had overrun. However, we would not have expected her to leave the meeting early, as it was dealing with one of the biggest constitutional crises facing the European Union now. It is also an issue that is at the very core of Katarina Barley’s political vocation: the Rule of Law.

“I’m a lawyer by passion” she says, and the way in which some Member States are dismantling public institutions and undermining an independent judiciary is bringing this passion to the fore. We have the Rule of Law monitoring where - every year - the European Commission looks at all Member States to see there is room for improvement in each one. However, there are a few countries that are completely off track when it comes to the Rule of Law; those, of course, are Poland and Hungary in the first line”.

“It is about how to guarantee the integrity of the Single Market and - just as importantly - about not having a border, a physical border”

To Barley, as to many observers, the picture is most bleak in Hungary, where after eleven years of Fidesz rule, “there is no democratic control left,” despite every effort on the part of the EU institutions to engage in dialogue with Budapest. Referring to the recent government practice of transferring control of public bodies to trusts, she adds that “even if Viktor Orbán loses the elections next year, he’s going to keep control of the State. So, this is the result of such a long dialogue”.

The group meeting on the day of our interview dealt with Poland, where that country’s Constitutional Tribunal had declared two articles of the Treaty for the European Union (TEFU) as incompatible with the Polish constitution just days earlier, in effect negating the primacy of EU law. National constitutional courts have clashed with the European Court of Justice (CJEU) before but, Barley insists, never in such a fundamental fashion. 

When the Polish government is trying to frame the EU’s reaction to the ruling as hypocritical, claiming they are being punished for something other Member States can do with impunity, “it is a conscious lie”. She continues “comparisons with other EU Member States are just smoke and mirrors. Of course, the legal systems in the Member States are different but ultimately, they all must serve the same purpose: the independent control of government power. But you will never see the CT - as it currently composed - standing up against the government in any politically relevant case.”

This is what makes the Polish case so dangerous for the Union, in Barley’s eyes. It threatens its very foundations and cannot be permitted to inspire imitators: “The Rule of Law crisis is not an isolated Polish problem. If we allow EU Member States to pick out which parts of the commonly agreed European laws they adhere to, our European community will inexorably disintegrate”. 

On constitutional matters, Barley can provide comment with an authority that exceeds many politicians. After having studied law in Germany and France, and earning degrees in both countries, she wrote her dissertation on European law at the University of Münster, Germany. A distinguished legal career followed, during which she worked as a barrister, as an assistant to a German constitutional judge and as a local and district court judge.

Her work as a legal adviser on bioethics to the Rhineland-Palatinate State Ministry of Justice and Consumer Protection brought her closer to politics and, when she successfully stood for the Bundestag in 2013, a stellar political career followed. Two years later, she became Secretary General of her party, managing the SPD’s 2017 election campaign.

Following the election and the formation of yet another ‘Grand coalition’ under Christian Democrat Chancellor Angela Merkel, Barley was first appointed Minister for Family Affairs, Senior Citizens, Women and Youth and, in a reshuffle six months later, became Minister for Justice and Consumer Protection. In 2019, the SPD chose her as the party’s Spitzenkandidat in the European elections.

As a vice-President, one of her areas of responsibility is the Academy of European Law in Trier and, as a leading member of Parliament’s Committee on Civil Liberties and Home Affairs (LIBE), Barley continues to engage with the Union’s legal system, most recently as co-rapporteur on establishing the Justice Programme. Importantly, this programme aims to facilitate and support judicial cooperation in civil and criminal matters across the Union, “promoting the rule of law, independence and impartiality of the judiciary”.

But another, even more recent, appointment illustrates where Katarina Barley’s political heart also beats passionately. During October’s second plenary session, the composition of the new EU-UK Parliamentary Partnership Assembly was announced, with her name included. As a dual national, Barley is one of the very few UK citizens left in the European Parliament, and the recent escalation of the dispute between Brussels and London over the Northern Ireland Protocol (NIP) worries her deeply. 

“I was involved in this whole Brexit thing from the very outset; as a British citizen I found myself very close to the whole subject. The issue of Ireland should have been raised and answered in the UK before they started the whole process. It was clear that we would come to this point, and Northern Ireland was - from the very beginning - a question that was difficult to solve in an acceptable way, for either side.”

“There are a few countries that are completely off track when it comes to the Rule of Law; those, of course, are Poland and Hungary in the first line”

However, as the Brits are fond of saying, we are where we are, and Barley welcomes the pragmatism shown by the Commission and specifically by vice-President Maroš Šefčovič, who in mid-October proposed various measures to make the NIP work better. “I think it’s a good approach, being sensible and looking at where our expectations or fears have not been met and where can we simplify our agreement.”

So far, however, the UK government’s response has mainly been to pull another so-called ‘red line’ from its pocket, the European Court of Justice’s legal oversight of issues relating to the Customs Union and Single Market membership still granted to Northern Ireland. 

The EU could not agree to change without substantially damaging the CU and the SM. Barley’s experience has been that, in reality, London cares very little about Northern Ireland. She last visited in 2019; “I went to the Irish border and talked to the people there, and they said, ‘Look, you’re a German politician and you come here, and you talk to us. We’ve never seen anyone from Westminster here.’” 

When she stopped over in London on the way back, she found the lack of interest was confirmed. “I had a few interviews going on there, and it was all about the German car industry, how they would put pressure on the German government, and about all sorts of trade issues. There was not a single word on Northern Ireland. They just didn’t care; I must put it that way. Not the politicians, not the media, they just didn’t find it that interesting a subject.”

For the EU, of course, Ireland is at the core of the Brexit dilemma and the NIP. As Barley explains, it is “about how to guarantee the integrity of the Single Market and - just as importantly - about not having a border, a physical border”. 

The UK government is increasingly trying to use this to their tactical advantage, regardless of the cost to the citizens of Northern Ireland. Barley has an anecdote from her last visit in London that illustrates this attitude quite starkly. “I was on a panel with, if I can put it this way, an elderly Tory politician. And after us arguing, he said, ‘Okay, if you don’t do what we want you to do then we’ll just see how it goes".

"We’ll just leave it and then there will be a border, and we won’t protect this border. So, if we don’t protect the border, what are you going to do? You will have to put soldiers there; you will have to put posts there.’ I was shocked by this hostile rhetoric. Luckily, the UK and the EU managed to negotiate a protocol on Northern Ireland that ensures stability at the border- and I hope that both sides will stick to it.”