The future role of civil society in safeguarding and promoting fundamental rights in Europe

Michael O’Flaherty
There is no arguing anymore that it is a matter of straightforward international human rights law that the state must foster a thriving civil society. So first and foremost, we are calling for respect for the law.

Minister, Excellencies, dear Colleagues,

My thanks to the organisers of the event, the Norwegian Foreign Affairs Ministry and EEA and Norway Grants for the invitation today. The Fundamental Rights Agency greatly appreciates the ongoing commitment of the EEA and Norway Grants to civil society, which is so vital for our democracies to grow and flourish in these difficult times. For many EU countries, you are the biggest single funder and a number of civil society organisations would not survive without your support.

For me, an exemplary illustration of the need for a vibrant civil society was a visit I made just a couple of weeks ago to a project that supports migrant Roma in Helsinki. This relatively small group of Roma from Romania and Bulgaria have been surviving in deplorable conditions in the forest outside Helsinki, but it has nonetheless proved difficult to get the local population to see the shocking situation taking place under their noses. The people I met represented a faith-based group that had taken it upon themselves to bring the story of these people out into the open in Finland. They play a vital role. They are civil society.

But it did not take my visit to Finland to understand the importance of civil society. Over my career, I have repeatedly experienced how crucial the so-called third sector can be, in war as in peace.

For example, 19 years ago I was leading the UN human rights programme in Sierra Leone. At a certain point in the horrible war there, one region was captured by rebels and cut off completely. We had no access, and therefore no idea what was going on, other than that it was obviously a very grave situation. Some six months after the loss of control of that territory, a package arrived in my office one day. Inside were five school notebooks, packed page after page after page with handwritten notes describing the occurrences in one particular town. As it transpired, a local schoolteacher had chronicled every abuse that he saw and smuggled his notebooks out to us. We were thus able to shine a light on what was really happening, and those notebooks were later used as evidence in the Sierra Leone Special Court. So in this case, a teacher had risked his own safety in order to chronicle the horrific reality of what was happening in his town and to support the delivery of justice. He was civil society.

I will give you one other example from the eight years’ experience I had in the UN’s Human Rights Committee. Our task was to review the situation of civil and political rights in the countries that have committed to the International Covenant on Civil and Political Rights – and we could not have fulfilled that role without the engagement of civil society. In fact, you could often tell when our report would be more or less strong from the number of civil society representatives present who had engaged with us.

We had one case of a European country that came before our committee, where one unfortunate gentleman represented the entirety of civil society all on his own. He had made his way at his own expense from his capital city to provide an alternative viewpoint on the human rights situation. But his lone voice was not enough, and because we didn’t have the civil society engagement, we just couldn’t get a complete picture of the big issues in that country. The following day, Brazil came before the committee, and the meeting hall was so full that there was scarcely room to breathe! We did a good job that day, because the government voice was complemented by that of the NGOs.

Dear colleagues,

Civil society is made up of more than just NGOs, important though they are. In line with the Fundamental Rights Agency’s founding regulation, we define civil society broadly. As well as NGOs, it encompasses trade unions; employers’ organisations; social and professional organisations; faith-based organisations, including churches, religious, philosophical and non-confessional organisations; and universities and academia more broadly.

As you well know, civil society is under threat across the world, and there have been impressive responses by the international community, including within the framework of the United Nations. However, the focus of our attention has been outward, beyond Europe, and in particular towards the Global South. It is only recently that we have come to appreciate that the problem of a shrinking civil society space – that is, of multiple forms of pressure against the work of civil society actors – is relevant within as well as outside the European Union.

As the EU agency responsible in this field, we are engaged in helping both civil society itself and national and EU-level authorities develop a response to this shrinking space. I am very pleased that we have reached into this sector in close cooperation with the EEA and Norway Grants.

We recently concluded research on the threats facing civil society across the 28 EU member states. According to our analysis, there are five categories of concern:

  1. The regulatory environment. Here there are issues regarding the shift in regulatory space for civil society, for example in the context of counter-terrorism legislation. Legal initiatives to respond to issues of terrorism and strengthening national security are also impinging on the legitimate space for civil society. In certain countries, we see that the laws prohibiting some forms of assembly include bona fide demonstrations that civil society should be able to convene without hindrance.

    Another problem regards the reach of transparency laws. There is an issue in some countries with broad lobbying laws that result in civil society organisations being subject to the same restraints as for-profit lobbyists, which is obviously problematic.

    A third worry in this area is the criminalisation of civil society activities. This has happened in particular with regard to the asylum crisis, when those providing humanitarian assistance to desperate people have found themselves liable to criminal prosecution.

  2. Finance and funding. I’ll mention two elements here. Firstly, taxation laws and the definition of what comprises charitable and non-charitable aims raise issues in countries in which human rights advocacy is not regarded as charitable, as this can mean the organisation loses tax benefits that would otherwise have been available.

    Money laundering regulations across Europe can also cause trouble for the transfer of funds needed for the operation of civil society organisations and even for the opening of necessary bank accounts.

    And there are other more prosaic challenges in accessing funds in many places around the EU. One of these is the focus on funding short-term projects - the ‘project-isation’ of grants. We have misgivings in this area: short-term project funding can inhibit organisations from carrying out sustainable work, and at the same time short-term funding does not support the core activities that are necessary for the very survival of the organisation.

    Our survey of civil society organisations also demonstrated concerns about the complexity of application procedures, whereby it appears increasingly necessary for the organisations to hire expert consultants to fill out the forms needed to obtain funding in the first place.

    Yet another concern is that more and more funders are unwilling to fund advocacy, but wish rather to focus on the provision of services. Organisations that have been established for the purpose of advocacy are therefore being forced to take on the role of service provider sometimes artificially.

    Finally in this area, we have in at least one EU member state witnessed laws put in place that limit foreign funding.

  3. Access to decision-making processes. We persist in having very uneven standards of access to information across EU member States: it works very well in some, and barely at all in others. But access to information is a matter of basic human rights, not to mention good, transparent governance.

    Another aspect of this are the inadequate consultation exercises we see in many places. We are hearing a great many complaints around the EU about timing, with a consultation window of just two days or a week in some cases. There have also been issues around the design of the consultation, where it has sometimes been so framed that it appears intended to produce the response the authorities want to receive.

    There is also a distinct problem with consultation feedback. It was often difficult in the past for civil society organisations to know the extent to which they were really contributing to public policy. However, this situation has clearly become worse in some places, with many organisations feeling that their contribution has fallen into a black hole and may simply have been ignored.

    Our research has furthermore showed us that in a number of EU countries, the authorities seem to be confusing consultation and participation. This gives rise to a situation in which the state claims that an invitation to civil society organisations to participate in initial consultations before a project begins is proof of their participation in those projects. But of course, these are two very different things.

  4. A safe and enabling environment. In too many parts of the EU, it is dangerous to be an active and vocal member of civil society. Safety often depends on the popularity or otherwise of the theme on which an organisation is working. We have received reports of this problem particularly with regard to those working in such areas as LGBTI, migration, Roma, Islamophobia, and anti-Semitism.

    What form does this trouble take? It includes verbal attacks by politicians, which can in turn trigger hostility and patterns of speech and actions that easily crosses the line to criminal hate speech and hate crime. At the same time, we often witness a lack of energetic engagement on the part of the authorities to investigate and prosecute perpetrators.

    Our survey also showed that many civil society groups are worried about state surveillance in their countries, although I must add here that FRA is not in a position to verify such claims.

  5. The capacity of civil society organisations. Civil society organisations across Europe report capacity issues that undermine their ability to be effective. They speak of a lack of the necessary professional skills, and an inability to recruit the highly qualified people that they need. If they do succeed in recruiting high-quality staff, they often subsequently lose them to other sectors, because they are unable to pay competitive salaries.

    We have received reports of the inability of civil society organisations to adequately support the wellbeing of their personnel, in particular where they deal with traumatic situations. I am thinking here of people on boats in the Aegean or central Mediterranean, either rescuing people or collecting bodies. But I could mention many other contexts that are equally traumatic, where there is a sense that civil society is paying insufficient attention to the needs of its own people.

Dear colleagues,

That is the diagnosis. So what are the solutions? At the meeting I mentioned earlier that we recently convened in Vienna, we brought together the voices of civil society from within Europe and beyond. We talked through the findings I have just presented to you, and we asked participants to give us some suggestions about how to best proceed. If you will allow, I would like to tell you about some of the ideas we developed.

The first thing to remember is that the starting point for our demand to empower and protect civil society is a strong human rights legal claim. Indeed, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities are explicit about the role of civil society in delivering on the commitments in the treaties. There is also the right to participation in public life stipulated in the International Covenant on Civil and Political Rights. There is no arguing anymore that it is a matter of straightforward international human rights law that the state must foster a thriving civil society. So first and foremost, we are calling for respect for the law.

Secondly, of particular importance for the EU is the need to achieve coherence in internal and external engagement. The EU is a good advisor on and puts a great deal of resources into civil society beyond its own borders, and it rightly demands high standards from recipients of aid. But now we must increasingly demonstrate the same degree of interest within the EU.

As we achieve this internal external coherence in EU policy in this subject area, we in Europe need to learn from outside and particularly from the Global South, where so much has been achieved by so many.

Another interesting suggestion that emerged from our consultation was the need to change the narrative. Rather than focusing on ‘shrinking civil society space’ in Europe, we should talk instead about ‘shrinking civil liberties’ or ‘shrinking space for our human rights’. In other words, we should frame our legitimate concerns in terms of their impact on our societies.

Yet one more proposal that deserves serious consideration is the establishment of an EU endowment fund for civil society. While we will ensure that such suggestions will receive the attention they deserve, I can already now announce some specific actions by the Fundamental Rights Agency.

In the meantime, I can make some firm commitments.

First, following the research I described today, we intend to produce a significant report on the topic of the shrinking civil society space in Europe. This report will highlight the vital role of civil society, making a business case for a strong civil society and at the same time addressing the challenges it faces across the EU Member States. This will be the first time an EU entity will have sought to address the topic in so systematic a manner.

Second, we will give serious consideration to providing support to set up an observatory for civil society, a ‘health check’ framework for civil society in Europe.

Third, we have reformed the way civil society engages with the FRA. The Agency works closely with civil society organisations active in the field of fundamental rights, in particular through our Fundamental Rights Platform, which currently brings together over 500 civil society organisations from across the EU. The Platform is FRA’s "mechanism of exchange and pooling of knowledge" created for facilitating a "structured and fruitful dialogue" amongst civil society organisations, between civil society organisations and FRA, and between civil society organisations and other key players on human rights in the EU.

We would welcome the inclusion of civil society organisations present here today, including Norwegian organisations that are active in the EU.

Fourth, the Fundamental Rights Agency convenes a major conference every two years to promote respect for human rights in the EU. The Forum met for the first time in 2016, when some 700 people came to Vienna to debate over a period of three days, with many of the conversations and initiatives feeding into policy making. We will be holding the second such event next year, dedicated this time to the theme of ‘belonging’. This will allow us to have a strong focus on the role of civil society in Europe, with a view towards strengthening public policy strategies in this area.

We see the EEA and Norway Grants as a strategic partner for the Forum, particularly given our shared concerns about the protection of human rights in Europe.

Dear colleagues,

By way of conclusion, allow me to recall that a strange term entered the European lexicon recently – ‘illiberal democracy’. Whether such a notion or political construct is either valid or coherent I will leave up to others to decide. However, I am clear that if we fail to cherish and protect civil society, ‘illiberal democracy’ is just what we may end up with.

Thank you.

See also