Why Clara Ponsati shows government actions can be threat to democracy - Dr Paul Arnell

Democracy appears simple.

Former Catalan politician and University of St Andrews professor Clara Ponsati. Picture: Jane Barlow/PA Wire

From Latin, the word literally means the process of rule by the people.

It is manifest through elections where the will of the people is given effect through a legislature and government.

Democracy is also almost universally accepted as a good thing. Its antithesis – dictatorship – is associated with repression and suffering.

In truth, democracy is fiendishly complex and can be pernicious. The case of Clara Ponsati brings to the fore the dangers of democracy unchecked.

Ponsati is a Catalonian nationalist and former academic at St Andrews University. In the past she has been sought from Scotland by Spain by way of extradition on charges of sedition and misuse of public funds.

Her story was front page news in Scotland, in part due to its resonance with Scottish nationalists. She is now a member of the European Parliament representing Spain.

Last Monday the European Parliament voted to deny criminal immunity to Ponsati and two other Catalan nationalists, leader Carlos Puigdemont and Toni Comin.

This move opens the door to Spain to begin extradition proceedings again for the transfer of Ponsati and her colleagues.

Whilst that may take some time on account of pending litigation, the possibility of her extradition and trial in Spain has undoubtedly been revived.

What does all this have to do with democracy? The answer is quite a lot.

Firstly, Spain appears set to continue to pursue the crime of sedition against the Catalan nationalists. That crime is defined in general terms as inciting people to resist or rebel against a government in power.

Notably, the Scottish Parliament felt it appropriate to abolish the common law crime of sedition in 2010.

In extradition proceedings prior to Ponsati’s case being suspended, Scottish prosecutors were obliged to suggest the crime of levying war in the realm under the Treason Felony Act of 1848 was analogous to the Spanish crime of sedition.

This was in order to meet extradition’s double criminality requirement. There are undoubted concerns over the nature and scope of the crime of sedition in modern democracies.

Secondly and more generally, a central question here is how far can a democratically elected government go in pursuance of its objectives?

Action in pursuit of legitimate national security concerns and in opposition to violence carried out against the unity of the state is clearly acceptable. At all times, however, a modern liberal democracy must adhere not only to democratic principles, but also to the rule of law and the human rights of its citizens.

The criminal proceedings spawned by the ill-fated referendum in Catalonia bring into sharp focus the dividing lines between state security, the rule of law and human rights.

There must be limits upon democratically elected governments beyond those imposed by the ballot box.

This is, of course, a particular challenge in the UK in the absence of a written constitution. Brexit and now the UK Government’s review of the Human Rights Act 1998 appear to be laying bare the archaic and deficient constitutional structures of the country.

Unlimited government in law or fact is merely tyranny of the majority. It is mob rule and unacceptable.

Recent events in the United States are evidence of that. Less dramatic, but no less wrong are practices which impinge upon the rights of minority groups and those who disagree with the views of the majority.

Dissent, disagreement and difference must be protected. Human rights exist for that exact purpose.

Binding Spain, the UK and 45 other countries is the European Convention on Human Rights 1950.

Born out of the horrors of the Second World War, it is predicated upon the necessity of protecting people, all people, from certain acts of government.

Freedom from torture, the right to a fair trial, freedom of expression, assembly and privacy are guaranteed under it. Those entitlements apply to the 820 million of people living in member countries of the Council of Europe.

Often overlooked and under-valued, the Council of Europe is arguably more important than the EU. Founded in 1949, its core mission is to protect and promote democracy, the rule of law and human rights. A key point is those three aims are not congruent nor always harmonious.

Human rights act to limit governments, including those democratically elected. That is clear.

The difficulty comes from the necessity to draw a line between what behaviour is permissibly restricted by the state and what is not. Or, from the perspective of the individual, what is a lawful exercise of one’s human rights and what is not.

Most human rights are designed to permit lawful interference. The freedom of expression can be restricted where it is undertaken to intentionally incite racial hatred, for example.

Where an individual or group engages in expression intended to further a nationalist cause seeking the creation of a new country from an existing polity, the position can become less clear.

The legal test applied to decide whether interference with the freedom of expression is lawful is whether it is based in law, necessary in a democratic society, proportionate and for a particular reason. Those reasons include national security, territorial integrity and the prevention of disorder and crime.

The lesson from the Ponsati case is that democracy must exist alongside human rights and the rule of law. The debate over a second Scottish independence referendum, the ongoing review of the Human Rights Act 1998 and the continuing Brexit-related tensions must fully appreciate that fact.

Threats to democracy are not alien to Europe. No longer do they take the form of the use or threat of armed conflict.

Equally dangerous, however, are governmental actions that disregard human rights and the rule of law.