Rule of law focus at European Conference of Bar Associations and Law Societies

Speech by the FRA Director Michael O'Flaherty at the 47th European Conference of Presidents of Bar Associations and Law Societies in Vienna on 1 March focusing on rule of law.

President Wolf,

Honourable judges,

Distinguished presidents of bar and law associations,

Dear colleagues,

Thank you for the invitation to speak this morning.

I consider it a very great honour indeed - not least because of the impressive history of the European Presidents’ Conference. As we have already heard from President Wolf, it has played a key role, often inadequately acknowledged I would suggest, in bridging East and West and in rediscovering the common ties that unite our single legal profession.

I am struck that the meeting always takes place in Vienna. That is no coincidence.

Having lived here now for some four years, I recognise and acknowledge that Vienna is a global city of human rights and rule of law.

This was very much celebrated just last year when we marked the 25th anniversary of the Vienna World Conference on Human Rights. And there is so many other initiatives, events, and indeed associations, linked with this city that gives it this global significance.

I welcome the topic that you have chosen for today’s discussion – rule of law.

Protection of the rule of law has a very high formal status on our continent. It is one of the foundational values of the European Union, of the Council of Europe and indeed of the United Nations itself.

And, as President Wolf has already made clear, it is under serious threat.

But before coming to elements of threat, let me just for a moment pause on the notion of what it is. There is no single definition of rule of law. You put five rule of law experts in the room and you will get five different definitions.

And so therefore I find it particularly useful for the discussions today, to refer to elements of the rule of law, as identified by the Council of Europe’s Venice Commission.

The Venice Commission has said that at its core, the rule of law is about ensuring respect for the principle of legality, the principle of legal certainty, prohibiting arbitrariness, ensuring access to justice, respecting human rights, avoiding discrimination and promoting equality before the law.

If we take just those elements as a definition of rule of law – typically I would go a bit broader than that – but if we take just those elements, we see very clearly the extent to which we face problems right across the different countries of the continent of Europe.

In the first place, as President Wolf has already touched on, there are threats to the operation of the courts in some places. Pressure and compromises of the independence of the judiciary in other places. Interference with lawyers.

And of course, as he also mentioned, there is the corrosive issue of corruption.

Going beyond the formal context of courts, judges and lawyers, we see very closely associated pressure on national human rights bodies, such as ombudsmen, in too many places. We see an increasing level of pressure on what we term the civil society space.

And of course, we observe too many diverse forms of interference with media. And all of this associated with worrying patterns of human rights violation – something that my agency, the EU Fundamental Rights Agency, spends much of its time tracking across the EU Member States.

It is for this reason that I think this discussion is extremely timely and also particularly appropriate among lawyers.

Lawyers because of our role have a solemn duty, if I may put it like that, to engage with threats to the rule of law and to legal systems. We commonly describe ourselves as officers of the court. I would suggest today that we might better describe ourselves as guardians of the court. We typically say that our job is to uphold law. Perhaps today the focus should be on us as protectors of law.

Now, as you deliberate on how better to be guardian of courts, protectors of law, could I ask you to keep three qualities in mind.

The first is a sense of urgency. There is no room for complacency. Things are bad and they need attention now, not tomorrow.

Secondly, exceptional times require exceptional actions. Action, reflection, intervention, outside the ordinary way of working.

And the third, and the final of my three suggestions, is to please keep in mind in the reflections today that protecting the rule of law is ultimately about protecting the most marginal, the most vulnerable people in our societies.

I find it helpful in discussions such as this to think through who are my heroes and look at the experiences of my heroes to motivate and to inspire me in figuring out what I should do.

And in preparing for this morning, I thought of three heroes in my life. Three lawyers, all now dead, but I have had the honour to know all three as friends. All of them have had something important to say to me in terms of what I should do in contributing to upholding the rule of law. Some of these will be known to you.

The first is Professor Sir Nigel Rodley, who died two years ago. A great UK human rights lawyer. Nigel never used violence in his life, but stood up against despots with the rigour of the law. And it was through his persistence and his dogged application of law, never deviating from it that he had great success in his career, including rescuing countless people from torture.

The second hero I would mention is the recently deceased former chief justice of India, P. N. Bhagwati. Why do I mention Bhagwati? I mention him because he was a rule of law champion in the greatest democracy on earth. But he never lost sight that it was for, ultimately, the outcast, those starving on the margins of society in his country. And he brought them into the heart of the jurisprudence of his supreme court.

And the third of the heroes died just last year. Asma Jahangir was a great lawyer of the Pakistan Bar. She died of natural causes but could easily have been assassinated given the nature of her work, the extent of threats she faced. But she was fearless and we need to be fearless. She was highly imaginative and creative, as we also need to be. She was angry, but always a righteous, carefully channelled, law-respecting anger. And perhaps not irrelevant, she was a very funny person. And as we face great challenges and difficulties on the road ahead, it is important to maintain a sense of humour.

But beyond heroes in helping us figure out a path forward, I think we can also be encouraged by the institutions we have established and invested in here in the European context.

I would argue that the European institutions in supporting the rule of law are strong, resilient and engaged. We can be proud of the European Court of Justice. It is a sturdy, human rights, rule of law court. We can be proud, and have deep respect, also for the European Court of Human Rights in the tireless work that it carries out.

Moving to the European Union institutions, my colleague Emmanuel Crabit, will speak to this I am sure in a few moments, but I also am deeply impressed by what the European Commission seeks to do.

It has established a rule of law framework, which it is not afraid to apply and it tells us that in 2019 it will launch initiatives to strengthen that framework.

The Council of the European Union is also seized with issues of protecting the rule of law. I have had the honour of participating in the discussions in the General Affairs Council of the Council over the past four years. I have observed an incremental strengthening of its peer assessment process, which intends to strengthen rule of law where it is most under challenge in the EU.

I also see with some interest and some hope, a proposal originally by Belgium whereby EU Member States would peer review each other on a periodic basis with regard to their respect for rule of law. It is not in place now. It may never be. But the negotiation is interesting and encouraging – particularly as we learn the effectiveness of peer review from its relatively successful application in the context of the United Nations.

I look then to the European Parliament, which has proposed a sturdy new rule of law oversight mechanism, named after its initiator Sophie in ‘t Veld, a Dutch parliamentarian – which again holds promise.

And finally, I would mention, and again I am sure attention will be brought to this later, that there is a really innovative, imaginative and important reflection in Brussels on how the EU budget could be made conditional on rule of law compliance across EU Member States.

And as I conclude my remarks, let me also, President Wolf and dear friends, assure you of the support of my agency, the EU Fundamental Rights Agency.

Within the scope of our mandate, you can count on us. What does that mean in practice?

It means, we will continue to give you the data you need to measure levels of rule of law compliance – in particular through our surveys and our research.

We will continue to generate and share with you capacity-building and training tools and resources to help make us more resilient in standing up for the rule of law.

And we will produce innovative tools, which will be of use to everybody concerned in this area, such as the European Fundamental Rights Information System, which we will launch later this year.

Dear friends, as I wrap up my remarks, I feel myself forced to recall that I spent the early part of my career in Bosnia Herzegovina living in Sarajevo during the siege. I then went to Sierra Leone and lived there during its war. I went from there to the then East Timor and from there to Afghanistan.

In each place, I experienced a society where rule of law had collapsed. I also experienced societies where, at least in part, the descent into war was because of the erosion to the rule of law.

I think it is with images such as those that we should discuss the situation in Europe. We have a long way to go to such calamities, but let us make sure not to sleepwalk there.

Thank you.