Brussels, 25 November 2013

Good morning everyone and thank you for the invitation to what is likely to be a fascinating conference.  I wish you well in your work and don’t underestimate its difficulty. The branding of Europe is a jarring concept on one level - yet everyone with an interest in the EU will be consumed by it over the next six months. Parliament, individual MEPS, the Commission, other agencies and institutions, campaigners on all sorts of issues, Eurosceptics and Europhiles, all will promote the type of product they believe the EU public should either buy or leave on the shelf.

Some of this will be done as art form - fabulous, meticulously devised and researched ad campaigns that seek to move hearts while hoping the minds will follow, or that the minds won’t notice the disconnect between image and reality.  Some will be done at raw street level as election candidates trudge through their constituency towns and villages seeking to link the daily lived experience of their people with what happens in “Europe”.

I’ve been invited today because as a former journalist, a former national Ombudsman and now European Ombudsman my life’s work has been about finding ways to connect, finding the words that resonate, that move, that shape, that influence, that ultimately bring change. All of you are seeking to do the same thing and you are here today because you want to know how to do it effectively, and to share your perceptions from your countries.

My advice? Believe in your message, understand it and convey it with simplicity and passion.  It is not rocket science yet to the general EU public much of what happens over here might as well be.  The drive of EU officialdom is rarely towards simplicity and passion but rather towards the arcane, alienating, language of the geek, the expert, the specialist.

Let me explain this conundrum. When the EU genuinely wants to connect, it can do so with breath-taking verve and passion. I challenge all but the most Eurosceptic not to be moved by the ads devised for the 2014 parliamentary campaign. As I watch, my head tells me I’m being manipulated, my heart tells me, as I gaze upon new born babies, migrants fighting to arrive at an EU shore, a father tending to his young son in the midst of great poverty, a child dancing with exquisite grace, that I am part of something great, something profoundly human, and something that goes to the core of what it can mean to live in the European Union.

Yet contrast that magnificent slice of communication, when threatened by an increasingly eurosceptic public, with the day to day delivery of regulation and directive, the stuff that may well ultimately rescue that father and son from poverty, give a home to the desperate migrant, provide a job in time for that baby - the human essence of the work of the institutions delivered in a language so alien to the normal speech and listening patterns of an average citizen, that it is almost insulting.

In the run up to next year’s election, and as the economic crisis awaits resolution, there has been much agonising over what is called the European narrative. How does one spin a tale around the meaning of Europe that binds hearts and minds?  Easy to tell the tale of peace forged from the ashes of Auschwitz, harder to romanticise fiscal stability mechanisms and triologues and comitology. 

Many clever people are trying to find that new narrative, the EU’s so called second act at a point when for this young generation of Europeans, the Second World War is as far distant as - in the words of Donald Tusk last year - the Peloponnesian war by Thucydides.

On one level, the narrative is of course the stuff of politics but what is politics if not the delivery of social outcomes? As a young Irish woman, just out of school in the 1970s, my country’s entry into the EU delivered to me the great gifts of professional opportunity and equality of treatment that my mother and her generation of women could never have dreamed of and which my own Government was reluctant to concede. It is a simple, redemptive narrative and the challenge for the EU is to find new redemptive narratives for young Greek women coming of age this decade and the young Spanish women and for all of those who for the next six months will continually be told to trust.

According to the most recent Eurobarometer report, levels of trust in the EU institutions have continued to decline, and trust in the European Union collectively is at its lowest recorded level. The most recent figure is that six out of ten Europeans now tend not to trust the EU with less than a third (or 31%) expressing trust in the EU. At national level, a recent OECD report shows that the level of trust in government amongst OECD states has dropped to an average of 40%, but this average conceals some major extremes. In Greece, trust in government is at 13%, in Hungary it's at 21%, and in Ireland it's at 35 per cent.

Clearly, the severe and sustained economic downturn is a major factor in the present crisis of legitimacy facing both the EU and the member states. But, as the recent OECD report puts it, "the current situation suggests a loss of trust in government that is deeper, more prolonged and more systemic than previously, going well beyond mistrust of a particular leader or institution." Restoring trust in government requires action on many levels. But I am convinced that poor communication is a major contributor to the problem and that better and clearer communication is a significant part of the solution.

The Irish poet William Butler Yeats wrote.  "Think like a wise man, but communicate in the language of the people." The late UK Prime Minister Margaret Thatcher put it more bluntly when she is reported to have said that failure to write clearly goes beyond inconvenience or frustration on the part of the citizen but may also "indicate a failure to think clearly, a contempt for one's clients, or more probably a mixture of both.  A system that can't or won't communicate is not a safe basis for democracy."

It would be nice to be able to say that we, who serve in EU institutions, are winning the battle to communicate clearly and effectively with the European public. Unfortunately, I don’t think we can say that yet with any conviction.

Eurolegalism?

One thing that has struck me since moving to Strasbourg is the extent to which the law permeates, and indeed dominates, virtually every area of EU activity. The EU proclaims, and rightly so, that it is a Union based on the rule of law but sometimes it is forgotten that the rule of law is only part of the way in which we organise ourselves and direct our endeavours. The language of the law has now invaded the public space in a way that is profoundly alienating and is the reason why parliament and other institutions are now trusting in highly emotive advertising campaigns to redress that balance in the minds of the electorate, to show the beating heart behind the legal text.

Some weeks ago, I was talking to a senior legal official from an EU institution who said to me, rather proudly, "you know we lawyers have become very powerful here.  If someone wants to walk through that door, for example," he added, "they're now seeking legal advice about it."

I found some interesting reflections on this theme in a 2011 book, Eurolegalism: the Transformation of Law and Regulation in the European Union, written by the US academic R. Daniel Kellemen. What Kellemen describes is how the EU (or the EEC or European Community) has shifted gradually over the decades from a situation in which the law did not dominate the social, political and economic domains to one in which the law has become the defining factor in almost every important domain. Kellemen says that in its earliest incarnation the EU was clearly very different to the US in terms of the extent to which the law permeated every aspect of society. The US was then characterised as a society dominated by the law, by legal regulation and by litigation. By contrast, the EU then was “much more informal, cooperative and opaque … with little influence from courts and private litigants.” In the meantime, according to Kellemen, the EU has shifted radically to the present situation where “Eurolegalism” (as he terms it) is the order of the day. By this he means that the EU has produced more and more detailed legal rules, in virtually every important domain, and where these rules are judicially enforceable and backed with the right of litigation. And so we have detailed and complex law in the areas of competition, consumer rights, state aid, the environment and so on.

Ultimately, Kellemen accepts that this shift towards an all-pervasive legalism is not necessarily all bad. He comments:

“The EU is a community under the rule of law, and, whatever its present challenges, it is a community that has promoted democracy, peace and prosperity across Europe over the past half century. The rise of Eurolegalism may bring with it an excess of law, lawyers and litigation, but we may simply have to accept this as a small price to be paid to maintain European unity.”

If Kellemen is correct in his view, then we need to ensure that the law is clear and comprehensible and that all information in relation to it, and to the actions of our public bodies, is equally clear and comprehensible. We do not need lumps of jargon laden text that create the impression of a language capable of being understood only by EU insiders. Swedish law makes it mandatory for public officials to use plain and easily comprehensible language in their written communication to the Swedish people. A similar law - simply drafted! - in the EU might do more to push the case for a strong EU than any number of slick and expensive ‘branding’ campaigns.

Last month Lord Neuberger of Abbotsbury, President of the Supreme Court in the United Kingdom, spoke on the theme “Justice in an Age of Austerity”. He spoke about the relationship between justice and the rule of law and made the point that the rule of law does not necessarily serve to ensure justice in all circumstances.

One of Lord Neuberger’s key points is that, for the rule of law to support justice, the law must be accessible. He focused in particular on the accessibility of the law in terms of it being understandable to ordinary people. He drew attention to the fact that legislation is often poorly drafted and has become hideously complex. He referred to the confusion which often reigns in parliament where Members of Parliament may well struggle to understand the detail of what is being put before them.

So if our legislators struggle to understand the legislation they are enacting, what hope is there for the ordinary person? Lord Neuberger argued that, just because life is getting ever more complex, this does not have to mean that our laws must also be complex. In fact the reverse is the case, he argued. As life becomes more complex, what we need is less but simpler legislation. This, he argued, is more likely to serve the cause of justice.

Lord Neuberger also took a little swipe at court judgments, including his own.  He felt that judgments should be capable of being read and understood by ordinary people but that this, too often, is not the case. “Reading some judgments”, he said,” one rather loses the will to live – and this is particularly disconcerting when it’s your own judgment that you are reading.”

Of course Lord Neuberger would have been only too conscious of the standard set by some of his judicial predecessors in the UK and, in particular, of the extraordinary style of the late Lord Denning. In some of his judgments Lord Denning set out to tell a story and to let the legal issues appear to take second place to the story. This is how he opened a famous judgment from 1977 involving a dispute between a village cricket club and a neighbouring household:

“In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short. It has a good club house for the players and seats for the onlookers. The village team play there on Saturdays and Sundays. They belong to a league, competing with the neighbouring villages. On other evenings after work they practise while the light lasts. Yet now after these 70 years a judge of the High Court has ordered that they must not play there anymore. He has issued an injunction to stop them. He has done it at the instance of a newcomer who is no lover of cricket. “

And so on; and I’ll leave you to guess what position Lord Denning took on the case.

There is, undeniably, a difficulty with EU law in that it is not easily accessible to ordinary people.  In 2008, when the Lisbon Treaty was the subject of a ratification referendum in Ireland, Ireland’s EU Commissioner at the time, Charlie McCreevy, got into trouble when he admitted that he had not read the Lisbon Treaty in its entirety. In the course of an interview, he said:

"I don’t think there’s anybody in this room who has read [the Treaty] cover to cover. I don’t expect ordinary decent Irish people will be sitting down spending hours reading sections about sub-sections referring to other articles and sub-articles, but there is sufficient analysis done and people have put together a consolidated text which is quite easy to read ..."

This admission sparked some controversy, inevitably, with the Commissioner castigated for what was in reality a very open and honest admission.

As you are aware Ireland voted against EU Treaties on two occasions. On both occasions our Government made us resit the exam until we got the ‘right’ answer. The cause of our disenchantment was simple in my view - a newer generation was forgetting the past and the older generation was struggling to recast our membership in a way that resonated with the day to lives of the people. Equal pay for equal work is an easily understood and directly meaningful concept - the subtle changes that successive Treaties brought failed to excite and the language in which they were communicated led to a suspicion that it was deliberately used to conceal and to confuse.

As Ombudsman, at national and European level, I have noted that the failure to communicate is at the heart of many, many complaints, from the failure of a Doctor to listen to a patient, to the failure of an institution to listen to an argument for greater transparency or to understand why a conflict of interest may exist in a sensitive area of public importance.

We may work in institutions but we work for human beings, people who go through their days making decisions based on reason, at times on emotion, at times with the head, at times with the heart, but rarely with a copy of the latest EU Treaty by their side. If you really want open and honest communication with the public over the next six months and beyond, then, as I said at the start, believe in what you’re saying, communicate it simply and with passion,  and be humble enough to listen to what the people want and need. They are not fools, and will see through the artful work of the image maker.  Tell them with simplicity how that those images can be made real and then the job of real communication will have begun.