How to ensure the resilience of our societies in a changing European landscape

FRA's Director Michael O'Flaherty's keynote speech on the interaction between democracy, the rule of law and fundamental rights for the opening session of conference on 10 September in Helsinki organised by the Finnish Presidency of the EU.

Good morning,

Distinguished representatives of the Finnish presidency, your excellences, dear friends and colleagues,

I am so delighted to be here. I am very grateful for the invitation.

I have spent much of my life living in conflict and post-conflict situations. I started my career at the United Nations, working in Bosnia and Hercegovina during the war. I spent some considerable time in the city of Sarajevo while it was under siege.

Soon after that I moved to Sierra Leone in West Africa where I lived through much of their war and the first phases of the peace process.

After that I worked a lot in Asia. I spent time in a number of the conflict zones there – Afghanistan, East Timor and elsewhere.

And most recently, in terms of living in conflict affected societies, I was responsible for the Human Rights Commission of Northern Ireland for a number of years.

Why do I give you that bit of biography this morning? It is because I have seen what happens, I have seen first-hand, as perhaps some of you have as well, what happens when rule of law collapses in a society. How easily it collapses, how fragile it is, how difficult it is to re-establish.

So, it is in that context that I very warmly welcome the focus of today’s discussions. Yes, we are far from the situation of some of the places I have mentioned, of course we are. There’s no imminent threat that we will descend to the type of chaos that I have experienced in some of those places. But nevertheless, I am reminded how quickly one can arrive at those situations.

And yes we are, as the Commissioner said, under heavy stress and strain in the European Union and we do not want to sleepwalk into some unexpected and unwanted future.

As we reflect on this situation within Europe, we are also invited to consider a broader context of global risk. We must be Europe in the world and I think our organisers have invited us to reflect on that through their emphasis on the three elements of rule of law, democracy and human rights.

I am turning to the topics, as indeed the Commissioner and Emmanuel said just now, the three elements that we have for discussion today and tomorrow are co-dependent. They are not in any hierarchical relationship, at least I am not interested in finding a hierarchical relationship, rather the extent to which they profoundly rely on each other in order for each of them to be delivered. And this by the way reflects the spirit behind such foundational instruments of global good order as a Universal Declaration of Human Rights, which identifies rule of law as necessary for the delivery of human rights.

And as we explore each of the three elements and test their resilience during our conference, we are looking at resilience from two points of view. One is the extent to which our societies are resilient because we value those three elements. Secondly, and just as important, we have to interrogate the extent to which each of them is in itself resilient in the context of all the pressures.

And I would like to speak from both points of view this morning.

As my test of the resilience of the societies in general, on the one hand, and of each of those values on the other, I would like to look at three fundamental issues.

The first is law. The second is institutions. And the third is the consent of the citizen.

Law.

We should be very proud of what we have achieved in the European Union. We have built up a deeply impressive body of law and regulation that is intended for human betterment. This is a historical achievement. It is arguably one of the most successful projects of its kind that has ever been attempted anywhere. What’s more, it is not just an achievement for the regulation of a region, it is also an achievement for the strengthening of rights and values at national levels.

Take the crown jewel of this law and regulation, the Charter of Fundamental Rights, of which we have already heard so much this morning. We conducted research at the Fundamental Rights Agency which clearly demonstrates the value of the Charter but also the extent to which it adds new rights and new protections at the national level. In many places, it goes beyond the list of constitution-protected rights at national level, and thus it makes an important contribution to the constitutional order of our Member States.

However, let me sound a note of caution - as we celebrate the 10th anniversary of the Charter of Fundamental Rights, we have to acknowledge the extent of the Charter’s underuse and of our under-engagement with it.

Only 12 % of people are aware of the Charter. That is too low, but it is not so bad. If you go on the street and ask people whether they know about this or that legal instrument, I wouldn't be too discouraged if I came up with a figure of 12%. But, nevertheless, the point is that it is profoundly under-known or at least underused within the constituencies that need to be much better informed.

There is just a few weeks left of the anniversary year, but let us use it. Let us be vigorous in drawing attention to the Charter. Things have been a bit quiet so far in the anniversary year. Let us wake up and I would look to the three co-legislators to really bring attention to it. It is not just the event we will organise in November, but for example, why not have a great celebration of the Charter in the European Parliament on its 10th anniversary in December?

To conclude on law, allow me to pick up on one point made by the minister just now. She spoke of the relationship of European law and European values, and I think that was great because we talk a lot about European values. Sometimes European values are presented as somehow superior to any other kind of values. I do not like that talk and I do not think it is necessary, but when we link law with values as she did, we see that the core of our so-called European values are our human rights commitments as contained in law. Then I am comfortable because then we are not talking about hierarchically superior European values, but rather universal values which Europe holds dear.

The second of the three elements I would like to focus on this morning is that of institutions, strong institutions to deliver on the societies to which we aspire. And again, here as with the law, I think a proper starting point in these gloomy, pessimistic, downbeat days is to start with a sense of achievement.

We should be proud of the institutions we have established to deliver on the societies that we desire. The co-legislators of the European Union, the Commission, the Parliament and the Council have done and continue to do much of which we can be proud. They continue to innovate in order to strengthen our democratic societies.

We have heard for example, of the recent initiatives with regard to rule of law. And we have seen such initiatives in all three of the co-legislative institutions, all of which are promising, all of which indicate an attentiveness to the urgent actions that are needed.

Another example of things of which we should be proud, in which we can have some hope in, are the initiatives around discussions of a new EU budget with regard to strengthening of rule of law and democracy through forms of conditionality of the disbursement of EU funds. Those negotiations are far from complete, but, nevertheless, the fact that they are being addressed I find encouraging in terms of strong institutions.

Going beyond the co-legislators, I do not need to say much about the European Court of Justice. To my mind, the European Court of Justice of today has become a sturdy and a strong human and fundamental rights court, which is a matter of some satisfaction. Also, the EU Ombudsman has become an important human rights and fundamental rights actor in recent years.

Beyond the EU, in the pan European context, it would be very remiss of me not to mention the important role that is played by the Council of Europe, not just through the Court of Human Rights, but also for example, through the very important role of the Venice Commission.

As I celebrate the strong institutions, I could issue many words of caution. But let me just flag one right now and that again echoes something. The minister ended on this point this morning when she spoke about the importance of data, because no institution can do its job without the evidence, without the data, and in the particular context of the European Union, without the comparative data across the 28 Member States. And that is where the Fundamental Rights Agency above all else comes into play.

We do more than just gather data, but that is at the heart of our function, our value and our utility. That is why we invest in the world's most ambitious surveys of the experience of rights holders, including of those most on the edges of our societies. It is why we generate so much other data and evidence around the situation across our 28 Member States.

In November, in the context of the Finnish presidency, we will present a new tool, the European Fundamental Rights Information System. It will pull together, in a highly accessible manner, all of the judicial and quasi-judicial findings of all of the international monitoring bodies - UN, Council of Europe, EU – organised country by country as a contribution to support the institutions as they carry out their very important work in defence of the values that we are celebrating today.

Moving from the European to the national level and staying still with the institutions. I will not talk much about courts, about the media and about parliaments. They have already been mentioned. Their role is absolutely central.

I would rather use my limited time to focus on two actors that play an enormously important institutional role for the protection of the values that we are celebrating, but which are somewhat neglected sometimes in the discourse. The first of those is the community of national human rights institutions, equality bodies and ombudsmen, and the second is civil society.

Firstly, the national human rights institutions, the equality bodies and the ombudsmen. Again, we have seen an impressive growth in their function and indeed in their number in Europe. We have seen some really exciting initiatives to strengthen them, such as the adoption in recent months of the Venice Principles for the strengthening of the role of the ombudsman.

But, the Fundamental Rights Agency is concerned. We see pressure on these bodies in too many places regarding which conducting research this year, the results of which we will publish next year. Let me already flag some of the matters that we are looking at across the EU.

First, there is the incidence of threats against ombudsmen, national human rights institutions, and equality bodies. These remain fortunately extremely rare, but they are not unknown: direct, thuggish threats.

Secondly, there is a much more widespread issue of lack of resources for these vital national institutions in too many places. They are often under-resourced and a particularly worrying dimension of under-resourcing is that they are increasingly been given new mandates, while commonly not given extra resources to allow them to deliver on the new mandates. The overall impact is a weakening of the institutions themselves.

And third, a matter of some concern in some places is that well mandated institutions are being underused. And again, the reasons for underuse are complex, but it is something we are exploring and in which we will have some thoughts for you in 2020.

Before moving on, let me just say how very interested and indeed excited we are by current discussions in the context of the new EU budget of giving these institutions some form of monitoring role at the national level in terms of how funds are dispersed in the context of the protection and the upholding of fundamental rights.

The last of the national capacities I'd refer to is civil society. The extent to which we are concerned that they are inappropriately under pressure in too many places was already captured in a report which I first presented here in Helsinki and which was published in 2017. I will not say much about it today other than to recall that the pressures have not gone away.

There has not been some miraculous transformation in the environment for civil society. We still see too many direct threats, too much manipulation of financial resources, excessive application of regulation, and real problems in some places of effective access to the policymakers.

I'd turn then to the final of the areas I wish to address this morning. And that is the issue of the consent of the citizen. This is an enormous issue, perhaps the single most profound one that we need to confront in our societies and in our deliberations today and tomorrow. The evidence is all around us that we have a problem of the participation, of the consent, of our people for the societies we seek to achieve.

Let me just give you one figure - in the Edelman Trust Barometer 2019, 57% of our European population consider that the EU system is failing them. Whether that figure is accurate or not matters little. It echoes data from multiple sources. And of course as we look at what we need to do, we need multiple actions. We've heard already today of different approaches and let me within my own competency narrow my comments down to some specific actions that we need to take to re-establish the trust and regain the consent in the particular context of protection of fundamental rights.  

I'd like to mention three elements of re-engaging that trust from a fundamental rights point of view and with apologies, I'd be the first to admit they are rather disparate.

The first is perhaps most important from a human and fundamental rights point of view. We need to regain the confidence of the person on the street that the human and the fundamental rights project is about them. Yes, it is about the people on the margins. Of course it is. That is the acid test of the value of our systems, but it must never be about the marginalized at the expense of the general population. And yet we have tended to overlook the general population. We need to convince them that the project is about them. I would suggest that the most meaningful way to do that is to reengage and never cease investing in the building up of a society that is socially and economically just. And that is why I so very much welcome the efforts put in the development of the European Pillar of Social Rights, an initiative which must not fade in the coming years.

Secondly, in terms of a fundamental rights approach to regaining trust, I would mention the importance of keeping in mind that participation of the person, of the citizen in affairs that concern them. This is a matter of fundamental and human rights. This is an issue of law, of obligation to involve the citizen.

We flagged neglect of participation rights in the context of the elections for the European Parliament a few months ago, where we saw that disabled people often didn't have meaningful access to the right to vote because requisite systems were not in place.

Finally, I'd flag in terms of where we need to make much more effort for meaningful participation in our public consultation processes. We've examined them in the Fundamental Rights Agency on a number of occasions and they are sometimes found lacking. In some places they exist pro-forma, but in reality they are not terribly meaningful.

And then the third and the final of the points I will make in terms of gaining trust is about going local.

It is fashionable right now to talk about going local, but it is also relevant, necessary and timely. We live our lives locally. We live our lives in the village, on the street, in the town, in the city. And increasingly we recognize the extent to which the solutions, the smart moves have to involve local initiatives, by city councils, by mayors with community organisations on the streets.

Let me end dear colleagues by going back to where I began. I began by framing everything I said to you today in the context of my experience, which is not especially a European experience, it is a global experience. I would strongly encourage us in our deliberations today to deliberate as Europe in the world, not as Europe cut off from the world.

To help us do that, let's introduce into our reflections the sustainable development goals (SDGs).

Let's frame them in the context of not just SDG 16 on rule of law, but all 17 of the sustainable development goals. Thereby the conference conclusions, the outputs and what the presidency does with them will not just be a contribution to a stronger European Union, but to a more fair and just global order.

Thank you.