FRAME Conference

13 September 2016  -  Dublin

Thank you for that introduction and I’d like first of all to apologise for not being physically present with you today. This is so-called session week in Strasbourg when the European Parliament meets in plenary and where this week Commission President Juncker will make his State of the Union address. Every such address is of course important but the proposed exit of the United Kingdom from the EU will give it of course an extra dimension as indeed will the many other challenges currently facing the union.

And none of those challenges, from the refugee and migrant crisis, to rule of law issues in Poland and Hungary, indeed to Ireland’s own current tussle with the Commission in relation to tax deals with the Apple Corporation, lack a human rights dimension.  How and by whom that dimension is articulated, how and by whom human rights are engaged or expressed or legislated for, goes of course to the heart of your discussion here today and to the Frame project itself.

The FRAME project is concerned with issues of coherence and incoherence in the human rights policies of the EU. In a sense, the project is interrogating the gap between rhetoric and action on the part of the EU and its Member States. There is now a well recognised pattern of ambivalence, to put it mildly, on the part of governments when it comes to meeting the demands of human rights instruments to which they have signed up. And this is a pattern from which neither EU institutions nor the Member States are immune. I was , if not amused,  at least intrigued at a proposal in its last election to have a separate UK human rights act, separate that is from the European Convention of Human Rights as incorporated into UK law in the late 1990s -  as if UK human rights were of a different quality – or needed to be of a different quality to those considered universally applicable to everyone else.

The job of my Office is essentially to deal with complaints against the EU administration. That includes all the institutions, bodies and agencies of the EU, from the Commission, to the smallest executive agency and including the European Central Bank, and the Court of Justice in its administrative functions. Any citizen, resident, business or organisation within the EU can make a complaint to my office whether they’re directly affected or not, so many complaints come to us from civil society groups and NGOs.

The complaints include the failure to reply to a communication, to give access to documents, alleged conflicts of interest, contract disputes, alleged failures in relation to state aid investigation procedures, perceived unfairness in a recruitment process, essentially any complaint that alleges that an EU body has not complied with a law or a principle of good administration binding on it.

The right to good administration is a citizen’s right, enshrined in the EU’s Charter of Fundamental Rights, and I also regard it as a human right. How the laws are administered after all reflects the totality of a state’s interaction with a citizen; it is precisely how a citizen experiences its treatment by that state and therefore acts as a sort of human rights thermometer. My job is to join the dots between administrative failure, lack of transparency, conflicts of interest, ethical failure, and the actual human fallout.

 The EU is currently dealing with a perfect storm of what some have called existential challenges. These include a major humanitarian crisis with refugees and migrants; terrorist attacks; a growth in racism and religious tensions in many Member States; political instability; a retreat from open borders in the Schengen countries; and a growth in populism and of support for political parties espousing policies which contradict the fundamental values and principles on which the EU was constructed.

Currently, France has suspended its adherence both to the European Convention on Human Rights and the UN’s International Covenant on Civil and Political Rights. And Turkey, an EU applicant country, has suspended the application of the European Convention on Human Rights. They are of course simply applying agreed mechanisms to do so in the face of certain threats, but the moves do point to the fragility of human rights instruments, at least in part, when a country feels under threat and therefore the need to exercise greater and less accountable control over its citizens and others.

The rhetoric of political discourse, both in Europe and globally is also deeply concerning with the previously unsayable now sayable. The clever, manipulative stoking of fears both in the US and in Europe, creates such an atmosphere of fear and paranoia that the human impulse is not to analyse and check for veracity, but rather to embrace the crude panaceas on offer to include the demonising of whatever ‘other’ is deemed to be at the root of the perceived threats to their existence or livelihoods. Nothing new there…

Despite these challenges, it is essential to seek to preserve the values and principles upon which the EU was founded because it was precisely those human rights values that the EU founders believed would keep Europe, and more particularly its citizens, safe. 

It has created institutions and mechanisms to seek to ensure that human rights remain central to the European Project. Whether these institutions and mechanisms are working as efficiently and effectively as possible is a question - and one being addressed within the FRAME project. But we do within the EU have a system of checks and balances which conditions behaviour and, at the very least, makes it less likely that respect for human rights takes second place to other considerations. However, as events in the past 18 months or so have shown, respect for human rights obligations does not win out in every case.

A former Taoiseach, Garret Fitzgerald, once remarked that politics is the most ethically challenging profession of all,  we can certainly now see the truth of that in an EU where the messy compromises currently being attempted in order to appease the diverse and often competing demands of the member states exposes the greyness of our actual human rights landscape.

We need to understand of course the difficulty in attempting to reconcile ethics and politics. Chancellor Merkel of Germany has been on the rough edge of this in the case of the refugee and migrant crisis. Her open invitation to Syrian refugees has damaged her politcally but the ethical dilemma she faces is facing all of us within the EU.

Most of the issues I deal with have little obvious connection with the major human rights issues -  migration, oppression, resource poverty, and the other big ticket items most easily identifiable as such -  but in fact, the line between the complaints I receive and the big ticket human rights issues is a lot more direct than one would initially imagine.

Two of my earliest investigations concerned matters of critical public interest: the safety of medicines authorised for use in the European Union and the negotiations between the EU and the US on TTIP, the Transatlantic Trade and Investment Partnership deal.

The first investigation was prompted by a number of access to documents requests, one from an Irish man whose young adult son had taken his own life while taking the drug roaccutane for a skin problem. The father had been denied access to clinical trial test results of the drug by the European Medicines Agency.

As a result of the work of my predecessor, and the work continued by me with the support of the Parliament, the Agency eventually transformed its entire transparency policy, leading now to significantly greater proactivity and an outcome which helps to reinforce the safety standards of the drugs we and our families take.

The strategic investigation into TTIP was prompted not just by a series of individual access to documents requests but by widespread concern that civil society in particular was not enabled fully to contribute to the dialogue around this critical trade agreement because it lacked the necessary access to the documents being created. The Commission has since adopted a much more proactive policy to allow for a more informed debate on the potential economic, financial, environmental and other critical outcomes of the proposed agreement. I am aware of course that TTIP faces an uncertain future, and some question the value of a transparency that allows opponents to seize upon or even distort released information for their own ends. But we all have to become accustomed to a world in which the expectation of open information borders is enormous and where the political battles for hearts and minds will no longer be allowed to take place where information is partial or rationed.

In that same vein, I have also inquired into the transparency of the so-called "Trilogues" process, the informal negotiations between the European Parliament, the Council and the Commission aimed at reaching early agreements on new EU legislation.  My investigation, once again, was prompted by concerns -  from parliamentarians to NGOs, to business groups -  that this critical piece of law making was not sufficiently transparent.

The issue of lobbying also looms large in my casework and rightly so as it goes to the heart of the process of decision making in the EU and the extent to which private interests are allowed, outside of public gaze, to influence law-making. A case of particular interest involves the very fundamental right to health and the manner in which the European Commission deals with the tobacco industry as it attempts to fight off industry damaging regulation, a subject that has also been a very big issue in Ireland.

Following a complaint from an NGO, I inquired into the practices of the European Commission in proactively publishing details of its meetings with the tobacco industry. I concluded that the Commission's approach was inadequate, unreliable and unsatisfactory and that the Commission – apart from its health directorate - is not fully implementing the UN World Health Organisation’s Tobacco Control Convention.

I recommended to the Commission that it should proactively publish online all meetings with tobacco lobbyists, or their legal representatives, as well as the minutes of those meetings, in order to help to protect the fundamental right to health. In responding to my recommendation, the Commission – advised by its legal service - argued that it is meeting its obligations under the Tobacco Control Convention. Using the terminology being followed for the purposes of the FRAME research, I see the Commission’s practice in the case of the tobacco industry as an example of “internal-internal incoherence [i.e. EU policies contradicting its H[uman]R[ights] commitment”.

The consequences of lobbying may also be a factor in the recent Volkswagen scandal. The question arises as to how a regime that allowed emission rates to be obscured, could have been put into place. I accept that the human rights link isn’t always immediately obvious when one speaks about lobbying transparency, but when one considers the health effects of diesel emissions, it becomes a lot clearer.

Another case has a more explicit human rights dimension.  This case concerned the European Commission’s negotiations on the EU-Vietnam Free Trade Agreement which was concluded in December 2015. My inquiry concerned the refusal of the Commission to conduct a human rights impact assessment in advance of the negotiations with Vietnam.

While trade agreements are designed to be good for the economy, it is not necessarily the case that they always bring benefits in the same way for all the peoples of the countries concerned. Trade agreements may at times have negative consequences for the human rights of the peoples affected by those agreements. Consequently, it was important to explore this particularly in relation to Vietnam - a country about which human rights concerns already existed. There was no express obligation on the Commission to conduct a prior human rights assessment and, in the event, it didn’t.

But it seemed to me that the Commission’s actions here went against the spirit of Article 21 of the Lisbon Treaty which provides that the Union's action on the international scene "shall be guided by the principles which have inspired its own creation, development and enlargement and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity and respect for the principles of the United Nations Charter and international law".

The Commission, unfortunately, did not act on my recommendation, made in March 2015, that it should conduct a human rights assessment - a recommendation at one with the view of the European Parliament which in April 2014 had adopted a resolution urging the Commission to conduct a human rights assessment in this case. The Commission’s approach in this case was at odds also with the European Council’s Action Plan on Human Rights and Democracy for the years 2012-2014 (which was adopted one day before the negotiations with Vietnam started), and which called on the Commission to incorporate human rights in all impact assessments relating to trade agreements.

From the FRAME research perspective, I suspect that is this another example of “internal-internal incoherence”.

Coincidentally, I was given a very interesting insight into the practical way in which this EU/Vietnam trade deal is playing out vis a vis human rights when listening to last Saturday morning’s Countrywide programme on RTÉ Radio 1. One report concerned a trade visit by the Irish Junior Minister for Agriculture and Irish food industry interests to Vietnam to chase down opportunities for selling into that newly opened market.

A Vietnamese interviewee explained that people were now moving away from the traditional markets and looking for imported goods in supermarkets and other shops. She suggested that this was because the quality of the market produce wasn’t always assured and, while this may be the case, I did wonder about the people who ran those market stalls and what will become of them now that their business is being diluted by Irish and other EU producers flocking in to fill their supermarkets. It will be interesting to see what the post-hoc human rights evaluation of that agreement promised by the Commission will have to say about that.

Many of you will be aware of the current controversy surrounding the acceptance by former European Commission President Barroso of a high-level job with the investment bank Goldman Sachs. The controversy arises because of the requirement at Article 245 TFEU that Commissioners and former Commissioners "behave with integrity and discretion as regards the acceptance, after they have ceased to hold office, of certain appointments or benefits". The concern is that the former President’s appointment with a major global bank is incompatible with his duty under the Treaty. It is a reasonable assumption that the appointment was made primarily because of the former President’s knowledge of, and experience with, the EU. The argument is that, while individuals always have the right to make a living and take up employment, former holders of very high public office have a continuing obligation to act in the interests of the public and to accept the need to exercise discretion in the employments they take up.

I wrote last week to the current Commission President Juncker seeking to establish what action the Commission proposes to take to deal with the situation. Last Friday, President Juncker responded by saying that he agreed that the ethical obligations are not time-limited, and he has now asked a special ethics committee to examine the Barroso appointment to see if it is in line with Treaty obligations and to report back.

In persuading an institution to accept a certain recommendation, I occasionally use a business argument for doing so. In that vein, I was interested to see that, reportedly, the leaders at the recent G20 summit in China spent some time discussing the negative fallout of globalisation, including income inequality and poor employment levels or quality. It struck me that they might now be paying more than lip service to this because for the first time, so many of their own political bases are being threatened by those who are whipping up public anger about those issues. Under threat themselves, we may perhaps see more concrete action.

Finally, I see that your work today is taking place in the historic Wood Quay area in Dublin. What some of you younger ones may not be aware of is that in the 1970s the decision to build the offices you are now sitting in was a source of enormous public concern. In 1978 and 1979 thousands of people took to the streets of Dublin to protest at the decision to build on one of the most important Viking sites not just in Dublin but in Europe. The battle to Save Wood Quay was lost. But you might be interested to know that Ireland’s best known human rights activist, Mary Robinson, was a leading light in that campaign. Mary Robinson subsequently went on to become President of Ireland and, later, the UN High Commissioner for Human Rights. She continues her work, in her admirably seamless way, through her foundation on climate change and human rights, a concept that was inconceivable during the last century.  Despite everything I have said today in relation to the EU human rights challenges, we have nonetheless come a very long way and it is down to people just like you to make sure that in time we will go even further.

Thank you