An open and safe Europe – what next?

Speech by FRA Director Morten Kjaerum in the session "Responding to key security challenges in the coming 10 to 15 years" at the High Level Stakeholders Conference on the future of Home Affairs, Brussels, 30 January 2014.

Ladies and gentlemen,

I would like to thank the organisers from DG Home for having invited the Fundamental Rights Agency to take part in this very important panel on security challenges for the next 10-15 years.

It is a signal that the European debate and policy is now beyond the point where we have to argue that fundamental rights are an integral part of any security policy.

A very tangible result of this is a much deeper integration of fundamental rights into the institutional framework of the EU institutions. For example, in recent years Frontex has benefitted from changes in its fundamental rights framework and the introduction of a structured dialogue with human rights organisations in civil society and intergovernmental bodies.

This is in line with article 2 of the Treaty of the European Union, which underlines the EU’s core values including fundamental rights. These values are made specific in the EU Charter of Fundamental Rights, which must underpin any effective security policy at the national and European level, because today security and fundamental rights are two sides of the same coin.

Why? Let me give you two important reasons.

Firstly, fundamental rights help include the protection of individuals in security policies from the outset. It is vital that security policies are seen to serve the citizens. Where the protection of the individual is perceived to be neglected or ignored, security policies run the severe risk of losing democratic legitimacy and democratic support. This is very well illustrated in the current concerns about mass surveillance and the lack of democratic control over intelligence gathering services.

Secondly, a fundamental rights dimension allows security policies to be legally sustainable again from the very outset. Increasingly, the European Court of Human Rights, the Court of Justice of the European Union as well as national courts will address aspects of security-related measures and policies. The current case in the Strasbourg Court relating to the activities of GCHQ in the UK is a very good example. The pending case before the Luxembourg Court on the legality of the EU Data Retention Directive is another. It is therefore important to ensure that security policies are “fundamental-rights proof” from the very outset.

I will raise two particular issues. Firstly, I will speak about the urgent need to rebuild trust in our institutions. And secondly, I will point to extremism in Europe.

1. How can we rebuild trust in the institutions to protect privacy rights?

Last July, Eurobarometer showed that only three in ten EU citizens trust the EU; fewer trust their national government or parliament. On top of that we see in 14 Member States, particularly in some of the newer Member States, that the overwhelming majority of respondents are not satisfied with the way democracy works. These figures are a serious problem, because lack of trust in the democratic institutions can undermine the legitimacy, the credibility and the functioning of security policies.

The Snowden revelations have undoubtedly added to this level of mistrust. They revealed a failure of democratic accountability mechanisms, a lack of democratic scrutiny and oversight of activities related to massive data trawling by the security services. They have raised questions regarding the rule of law. This is the very essence of democratic societies.

Given the growing interdependence between digital services and citizen participation in society, it is critical that people trust the way governments and corporations operate in this field.

One way to regain this trust is to establish transparent and independent, and therefore credible, mechanisms that protect citizen’s rights and give them access to remedies. The current mechanisms, such as the Data Protection Authorities, need to be strengthened both in terms of the scope of their activities as well as their interaction with those who have complained. This week, FRA published a report highlighting that data protection authorities in Member States are often deficient and weak. There is a clear need to strengthen their independence, provide them with resources and empower them to remedy violations. The Union requires a strong data protection framework to secure the rights of its citizens and, in particular, the right to privacy.

Other ways to improve trust include strengthening parliamentary scrutiny both at a national as well as a European level on all aspects of internal security. There also is a need to reinforce ex-ante fundamental rights impact assessments of upcoming legislation and ex-post judicial, as well as non-judicial controls.

Finally, we also need to address the private sector. The challenges ahead include finding ways of sensitising and committing the private sector to respect fundamental rights protection when dealing with personal data. A clear commitment to the protection of fundamental rights by the security industry, as well as by corporations holding masses of data will not only serve the rights holders, but also the corporations themselves.

Corporate Social Responsibility (CSR models) as well as Human Rights Compliance Guidelines for business have been developed, which the Union has taken an active interest in, over the last 10-15 years. Most recently with the EU’s guide to human rights for SMEs and the ICT Sector Guide on Implementing the UN Guiding Principles on Business and Human Rights. The next 10-15 years need to focus on mitigating the security risks that increase with the deepening of the relationship between the private sector and governments in areas of security and information technology. Security policies have to count on governments as well as a private sector that is trusted by citizens.

2. This leads me to my second point: How can we respond to the urgency of formulating a response to the threat of extremism on social cohesion.

The challenge of extremism will be with us in the next 10 to 15 years’ time, and probably beyond that as well. This has been fuelled by the legacy of radicalisation, the fall-out from the economic crisis, failed integration policies and the current mainstreaming of elements of extremist ideology in public discourse, as we also heard yesterday.

Place this in the context of demographic changes in the Union. In 10 to 15 years, as Eurostat has pointed out, the EU will be more culturally and ethnically diverse. A failure to improve in the coming years the integration of migrants and minorities with different ethnic and religious backgrounds may accelerate sectarian views across different population groups – in the majority population as well as among minorities.

The rise and electoral gains of extremist parties in a number of Member States highlight the need to recognise and address this issue from a security perspective.

FRA published a report on the effectiveness of state responses to racism, intolerance and extremism in some Member States. That showed the link between racism and extremism. The report identified a lack of effective implementation of European and national legal and policy provisions tackling racism, intolerance and extremism. Stronger national and European strategies to fight racist and related crime could support the development of more effective and coordinated action.

In past years, FRA has released a massive body of evidence, which revealed the pervasive nature of racially-motivated and other bias-motivated hate crimes, paired with a shockingly low level of reporting of such crimes by victims, indicating a lack of trust. This has shown policy makers that the extent of the problem is far greater than we had known hitherto, and that action is needed at legislative, policy as well as in particular at the very practical level. At the day-to-day level, it is essential to build trustful relations between the police and the various communities, which today are characterised by profound mistrust.

Hate crime and extremism instil fear into entire communities. They undermine the fabric of society. Formulating an effective response to these phenomena should be a high priority in any future internal security strategy, as this will contribute to safeguarding Europe’s diversity and cohesion. The Justice and Home Affairs Council conclusions on combating hate crime in the European Union, adopted in December 2013, is an important recognition of the issue and an important first step forward.

It was the UN Commissioner for Human Rights, Mary Robinson, who stressed that the essential element for any community to be secure is the uncompromising championship of Rule of Law and human rights. I think that the European Union and its Member States should lead by example when it comes to making fundamental rights an integral part of security strategies and policies.

Formulaic references to fundamental rights do not make for better security policies. It is their entrenchment in a true fundamental rights culture and a fully-fledged fundamental rights system that can make security policies legally sound and democratically legitimate.

A first step could be to establish an internal EU fundamental rights strategy to complement the external strategy. Such a strategy should cut across other strategies such as the internal security strategy and Europe2020 focusing on social inclusion. Finally, we should ensure that mandates and resources of national and European level fundamental rights bodies and institutions are robust enough to defend fundamental rights and privacy in the face of the key security challenges in the coming 10 to 15 years.

Thank you.