Emily O'Reilly
European Ombudsman
Clear Language Means Better Government?
Keynote at ICClear Clarity2014 conference on 'Learning to be Clear'
12 November 2014, Hilton Hotel, Antwerp

When I was invited to speak here this morning, I was very happy to take the opportunity to add my voice to that of so many others who are concerned that poor communication, writing unclearly, is a significant contributor to the gap between citizens and their governments. In fact, this is the third occasion over the past 12 months on which I have spoken on this theme so you will understand that for me, as a former journalist, effective communication is a top priority.

When I first spoke on the topic of clear language, almost exactly one year ago today, I focused particularly on the situation at the level of the European Union and spoke of the problems of Eurolegalism, EuroEnglish or even Franglais. These are problems of a multilingual and multicultural European Union. But in the interests of balance, I have to say that writing unclearly is not simply the product of a multilingual, multicultural context. I think we all know perfectly well that some people writing in their own language, free of the immediate influence of other languages, can nevertheless be shockingly obtuse and incoherent. We certainly cannot "blame" the EU for inventing jargon and gobbledygook!  

But I’d like to begin with a concrete example, from my former professional life in Ireland, of how a Referendum Commission of which I was an ex officio member almost became derailed on the satanic altar of Eurospeak.

The Commission is the body, chaired by a High Court Judge, which is charged with the job of explaining – neutrally – what a particular Referendum means. On this occasion we were explaining the Lisbon Treaty. We spent several weeks getting our own non-expert heads around the provisions and finally unleashed it in bite-size form to the public. Some weeks later we had to call a press conference to clarify some misrepresentations from the "NO" side, but, agonising over our neutrality, we threw in a few other bits and pieces to balance out the ‘clarification’.

Most of the assembled media weren’t particularly interested one way or the other, but one journalist, trying to find something of interest, scanned the fine detail of our explanations, produced by our lawyers, looked up and asked, “What is Comitology?’ Upon which, silence decided on the top table. I looked into the far distance, as did the Comptroller and Auditor General and along with the two senior Parliamentary Clerks we left it to the man with the microphone, the Judge, to dig us out of that one.

The agonising silence continued as the Judge, uselessly, flicked through his briefing notes to find something he could plausibly use. Eventually, from the back row, the then European Correspondent of Ireland's national broadcaster (RTÉ), came to our rescue, “I think,” he said, “It has to do with Committees…” The following day, the exchange, with every last second of excruciating silence thrown in, was lovingly played on national radio.

Comitology is one of those words that emerged within the Brussels bubble and which relates to a complex set of procedures for the passing of technical amendments. Lisbon was getting rid of it which accounted for its inclusion in our press release and while that particular incident was funny in hindsight – although perhaps not for the Judge – it highlighted precisely what we are talking about here, the way in which exclusionary, "expert speak" develops and cuts off any possibility of inclusion or understanding even by people reasonably clued in about general issues of law and administration.

In thinking about what I might say this morning, I posed four questions.

Firstly: Is poor communication undermining trust in government? YES.

Secondly: because government is a complex business, can we reasonably expect to be kept informed in clear language? YES.

Thirdly, and in the specific context of the EU, I asked: is "EuroEnglish" a necessary evil?" YES, some version of European English is inevitable and what we need to do is to seek to ensure that it acts as an effective form of communication and is not allowed drift too far away from standard English. It should be a tool which unites rather than divides.

Finally, I asked: "Can we embed clear writing principles in a sustainable way?" This is the really big question. My answer is that, YES, it is possible but it will require exceptional and sustained effort by many different parties to government.

Context

But context first.  As regards the government of the EU, the nature and extent of the problem is more problematic than that facing the individual member states. It was always going to be difficult to create a sense of European identity and difficult for the governmental institutions of the EU to connect with the people who are now, since the Maastricht Treaty, EU citizens.

The EU, as characterised in the Transparency International report on integrity in the EU, is "a multi-level, multi-cultural and multi-lingual political and economic system with diverse national environments regarding media, civil society and businesses". And to that we can add, I believe, diverse political traditions and institutions. Furthermore, the government of the EU is centred physically on Brussels and Luxembourg and, to a lesser extent, Strasbourg. This is what is often referred to as the "Brussels bubble" which, not surprisingly, can be a self-absorbed or self-contained world that is difficult for outsiders to penetrate.

In terms of citizens having an attachment to, or sense of identity with it, the EU cannot realistically be compared with any of the individual member states. While many member states are multi-lingual and multi-cultural, this is not necessarily a barrier to citizens having a sense of national identity and of attachment to the state.

In his 2005 book, Postwar, the late historian Tony Judt, commented on the extent to which citizens of the individual states of Europe have failed to take an interest in what's happening in other European countries. In his view, during the period since 1945, there has been a general boredom with events in other European countries which he characterises as a "natural by-product of the largely un-European universe of most Europeans". Judt argues that, perhaps contrary to what one might expect, the explosion of media services and of television in particular, has not had the effect of widening the European horizons of citizens of the individual member states. In fact, according to Judt, television in particular has done the opposite; it has, he says, reinforced "national distinctions and a high level of mutual ignorance". 

Perhaps not entirely mischievously, Judt suggests that, more than anything else, the bond uniting Europeans is a shared interest in football! Indeed when my office conducted an investigation in relation to allegations of inappropriate state aid to certain Spanish football clubs, the publicity we got right throughout Europe and beyond was off the Richter scale.  It even generated a complaint from Diego Maradona which sadly, was not within remit.

In recent years, citizens' knowledge of, and attachment to, the EU has taken a further bashing partly as a result of the economic turmoil that has engulfed many member states in recent years. There is a crisis of legitimacy of government that affects both the EU collectively and many of the individual member states. There has been a growth of disharmony within the EU and a certain loss of social cohesion. There is a perceived deficit in democratic accountability not least in the EU’s handling of the economic and financial crisis. There appears to be some recurrence of extreme racism. There is a perception of a retreat by some from the idea of solidarity between member states. And in the case of the United Kingdom, there is the on-going tug-of-war about continued membership of the Union.

Ultimately, as Ireland’s President, Michael D. Higgins, said in a speech to the European Parliament last year the EU “draws its legitimacy from the support of its citizens”. The fact that so many EU citizens are apparently disengaged is a serious worry for the EU. Some people of course question the very idea of EU citizenry itself, seeing it as an artificial even phoney construct which, despite being a legal reality, may never be a felt reality by many within the Union. But European interconnectedness is there in any event and constantly evolving and scepticism about the notion of the European citizen doesn’t detract from that hard fact.

Voter turn-out for elections is a good indicator of citizen engagement. In the recent independence referendum in Scotland, 85 per cent of the electorate came out to vote. The Scots, clearly, were totally engaged on the issue not surprising given how intimately close the issue was to every single Scottish citizen.

But in last May's elections to the European Parliament the overall voter turnout was 42.5 per cent, continuing the downward trend in turnout in successive European Parliament elections since 1979. But within this average of 42.5 per cent last May, we find a 90 per cent turnout in Belgium - where, technically, voting is mandatory - and just a 13 per cent turn-out in Slovakia. The attempt to turn the election also into an EU wide election by the citizens of the EU Commission President was a worthy attempt to give further democratic legitimacy to that office. It is very doubtful however that more than a tiny percentage of those who cast their vote actually knew that that is what they were supposed to be doing, or even if they did, really felt any deep attachment to the process,

Clear Language Means Better Government?

There is a question mark in the title of my talk: Clear Language Means Better Government? The question mark is there as a reminder that we need to question what we mean when we talk of "better government".  Several countries have in recent years promoted what have variously been called "Better Government" or "Better Regulation" projects. Some are concerned solely with addressing the needs of business - simplifying regulation and removing barriers and red tape - but fail to address the wider needs of the people more generally.

On the other hand, the current "Good Law Initiative" in the UK does appear to support what I understand by the term "better government". The Initiative promotes the use of Plain English in the writing of law to ensure, as far as is possible, that ordinary people have some reasonable prospect of actually understanding it. It supports access to the law for ordinary people through a dedicated legislation website. It encourages engagement with interested citizens in deciding which laws are actually necessary and in the drafting of laws. But perhaps most importantly, it reflects the democratic principle that the law is meant for the people and not for a professional legal elite. The website of the Initiative says, rather boldly:

"We want to build a shared accountability for (and pride in) the quality of our law, and to create confidence among users that legislation is for them."

I don’t know if this Initiative is succeeding but its purposes are noble.

But we should not confine ourselves to the language of legislation. The style and tone of all communications from government and its agencies affect how government is perceived by citizens and affect the capacity of citizens to become engaged with government. Better government, in the context of a democracy, is as much about citizen involvement, trust and integrity as it is about efficiency. 

Transparency International's report on integrity in the EU makes this very point. Commenting on the so-called "Brussels bubble", TI say:

"Within this bubble, English and EU specific terminology rarely used in non-EU contexts dominate the discourse, creating a barrier for outsiders to understand effectively or challenge how Brussels operates."

At the same time, we should not fool ourselves that the use of plain language in our laws, whether at national or EU level, will guarantee good behaviour by government or, indeed, by the people.

A very interesting example is that of the Weimar Constitution of 1919 in Germany. The drafting of the Weimar Constitution was itself heavily influenced by a new approach to legal drafting championed in the Swiss Civil Code of 1907. That Code was written in popular and clear language and had an easily comprehended and open structure.

Its main draftsman, a certain Eugen Huber, wrote that the Code

 "must speak in popular ideas. The man of reason ... should have the feeling, as he reads it, that the statute speaks to him from the heart... Its provisions must mean something to the educated layman, even if it will always mean more to the specialist".

This, then, was the model followed in the Weimar Constitution. One authority on the Weimar Constitution described it as follows.

"The language was clear and direct and comprehensible to the lay person; the structure was comprehensible and open and, critically, the principles espoused were left deliberately incomplete, to be filled (as occasion required) by means either of a special organic law or by judicial decision."

Furthermore, Weimar was a key influence in the drafting of many other inter-war constitutions in Europe - for example in Poland, Austria, Portugal and Czechoslovakia as well as in Ireland.

Now the point of this historical digression is that the existence of the Weimar Constitution, wonderful as it was, was not enough to prevent the rise of Nazism nor to prevent Hitler from assuming dictatorial powers. In fact, Hitler subverted the Constitution from within and succeeded in invoking a provision, Article 48, which allowed him to trample over those civil liberties guaranteed by the Constitution.

So: good laws, by themselves, are not enough to ensure good behaviour. But I think we can safely say that bad laws actively encourage or facilitate bad behaviour.

Clear Language and the EU

So, let’s consider the EU communication challenges and, specifically, in relation to drafting legislation.

Contrary to the practice in some member states, the drafting of EU legislation is not assigned to specialist draftsmen. In fact, the first draft is done by staff with technical competence in the particular area but who are unlikely to have legal drafting skills. While the first draft exercises a huge influence on the final product, the drafter is also aware that the content may well be changed substantially. This does not encourage the first drafter to be too concerned about the quality of the first draft.

The drafting is also likely to be done by a person who is not writing in his or her own mother tongue. EU legislation is drafted mostly either in English or in French and neither may be the first language of the drafter or even the second language. In fact, Janet Pitt, the former Head of the European Parliament's Translation Service, made this very point recently. She remarked that, from a translation perspective, the Translation Service faces a "recurring problem ... of originals written in English by non-native speakers, which is the case with the majority of the texts we receive in English."

Drafting legislation is a specific skill for a person working in his own language; for a person working in a second or third language, and who is not a specialist draftsman, this must be the stuff of nightmares!

Also, with 28 member states, the EU does not have the advantage of a single, shared and well-embedded legal system. In fact, the EU legal system itself is still very much a work in progress. As Advocate General Sharpston has pointed out, it would be hard to overstate the difficulties arising from the multiplicity of national legal systems. What goes unsaid in national legislation, because of a shared understanding of the law, may well have to be spelled out at EU level because there is not a shared understanding of a particular term or principle. While some terms and principles may be shared from one national system to another, there is the complication that similar terms may be used in two or more national systems but, unfortunately, they may be used in quite different senses from one member state to another.

The quality of EU legislation reflects also the complex procedural stages involved in moving from a Commission proposal to the final outcome which, these days, is likely to include the Trialogue involving the Parliament, the Council and the Commission. While all law making involves compromises, it is probably fair to say that law making within the EU involves heroic levels of compromise.

The process is not one which lends itself easily to laws which are expressed in clear language and structured in a logical and coherent fashion. And sometimes, in the urgency of getting a result, language may creep in which is deliberately ambiguous. On top of all that, we have the situation with EU legislation that no one language version takes precedence over another. Each language version has equal validity and, inevitably, it can sometimes be difficult to reconcile what appear to be differences in meaning as between one language version and another.

Let me give you one small example arising in a complaint against the European Commission made to my Office last year. The complainant had been excluded from a recruitment competition on the grounds that he failed to satisfy the criterion for educational attainment. It is a standard feature of many EU recruitment competitions that an applicant must have a university degree or diploma based on four years of study. However, the complainant argued that he satisfied an alternative way of meeting the educational attainment criterion which is as follows:

"(ii) a level of education which corresponds to completed university studies attested by a diploma and professional experience of at least one year when the normal period of university education is at least three years."

Clearly, the intention is that a person not having a university degree or diploma based on four years of study can still be eligible with some combination of study and relevant professional experience. However, the wording begs several questions:

• Does "corresponds" mean "equivalent to" or does it mean "arising from"? Can education undertaken other than in a university satisfy the test?
• Does the reference to "at least one year" refer to the "professional experience" requirement, to the "university studies" requirement, or to both?
• Do the words "attested to by a diploma" require the applicant to hold a university diploma? Or do they mean that the education actually undertaken must be equivalent to that which is, otherwise, attested by a diploma?

The Commission was adamant that, in order to satisfy this criterion, an applicant would need to have an actual university diploma based on three years of study and supplemented by one year at least of relevant professional experience.

Not to prolong the agony, I can tell you that the Commission's interpretation is consistent with the interpretation of the European Court in various cases over the years. So, legally speaking, we know what the criterion means. But the wording is also capable of being understood differently, as the complainant argued. And it is just a little perverse that, in order to understand one of the ground rules of a recruitment competition, an applicant will need to be aware that the wording of that rule has been interpreted by the Court.

Incidentally, the wording that caused all this trouble is taken from the EU Staff Regulation and, I understand, was drafted initially in French, many years ago. Whatever about the French original, the English translation is problematic.

EuroEnglish - Here to Stay?

Turning for a moment now to the question of EuroEnglish, I suspect many of us who speak English as our first language have an instinctive unease about the way in which English is used within the EU system. I recall, shortly after I was elected as European Ombudsman, being told by an Irish MEP that it takes just a few months of exposure before even the native English speaker finds himself or herself slipping unconsciously into EuroEnglish. I know now that the MEP was correct.

One definition of EuroEnglish is that it is "an emerging variety of the English language used by speakers in the European Union whose mother tongue is not English". With 24 official EU languages, there is an obvious need for a common working language and, to a large extent, English has in recent years displaced French as that common working language.

Linguistically, this is very interesting. EuroEnglish is being used as the lingua franca among individuals and officials who have do not have a shared first language. And interestingly, it is not confined to business use; it is used also as a social language and I suspect that there are many couples in Brussels, Luxembourg and Strasbourg for whom EuroEnglish is their family language.

EuroEnglish speakers are shaping this variant of English with structures, vocabulary and pronunciations that owe as much to the other dominant languages of Europe (particularly French) as they do to English. The European Commission's Clear Writing Campaign gives particular guidance on the dangers of mixing up languages and using words and phrases, borrowed from another language, which in English have a different meaning. Typical examples of this are where the word "assist" is used, in the French sense of "being present", rather than in the English sense of "helping"; or where the verb  "to control" is used, in the French sense of "to check or verify", rather than in the English sense of " to exercise power over".

Language is about communication and requires that there is a shared meaning for words and terms used within the particular language. Languages also are in constant evolution. The normal pattern is that a dominant language influences a less dominant language and, of course, you don't have to be a language purist to find this disturbing. Ironically, with EuroEnglish, we have almost the reverse situation where English, one of the dominant languages in the world, is being changed by the very fact of it being spoken extensively by people for whom it is not a first language.

I wonder if we are heading for a situation where speakers of EuroEnglish will outnumber those who speak English as a first language. The key task now is to ensure that, to the greatest extent possible, EuroEnglish is not allowed to drift too far away from standard English so that the scope for confusion and lack of clarity in the use of EuroEnglish is minimised.

Of course the English language is being abused from within, by those for whom it is their first language. A few months ago I came across this gem. An Irish property developer had just entered into partnership with a major American firm which issued this statement:

“Joining forces with him is a real-time example of how leverage-related resolutions need to proceed in Europe, not with foreclosures and value dissipation, but through collaboration with best of class borrowers on a holistic basis across all lending relationships as a lynchpin for economic recovery in the region.”

And the national Ombudsman in Ireland, speaking recently on the importance of Plain English, quoted this wonder from a policy document he had been reading:

"This strategy provides an overarching, high level, integrated whole of Government framework to drive and facilitate the development of appropriate sectoral and horizontal policies which will be refined over the next few months to take account of this strategy".

So I'm not the only Ombudsman with a hang-up about language!

Embedding Clear Writing Principles

As European Ombudsman, I believe that the right to good administration - a right enshrined in the Charter of Fundamental Rights of the European Union - includes the right to clear and effective communication by government to EU citizens. 

While it is not a simple equation, I suspect that there is a strong correlation between high levels of citizen trust in government and good, clear communication by government with its citizens?

In any case, for the EU to retain the trust of its citizens it needs to communicate clearly and effectively and I don't believe that there is any magic solution. But we need at least to know the size of the task.

At the political level there needs to be awareness of the need for clear communication and that, in turn, must be reflected in the day to day management of all EU institutions. Communication has to be a priority.

When the European Commission's Clear Writing Campaign was launched, Commissioner Vassilou spelled out what was needed in order for the Campaign to succeed.

This included:

• explicit and real support for the Campaign from the very top in each institution;
• systematic and rigorous quality control measures put in place; and
• proper training and other supports provided for staff.

And we need to see this as an on-going way of life - not a time-limited campaign. There also needs to be a relentless focus on the standard of written work. Ideally, maintaining this focus should be the responsibility of someone reasonably senior in the institution who is required to report regularly to the very top. The greatest danger is that a campaign of this kind will be seen as a passing fad, something to which lip service is paid in the short term. Good communication, clear writing, must become embedded in the management practices of each institution and managers must be measured against their performance in this area.

I see that Steven Pinker, who has written a great deal on language, will be speaking to you tomorrow. The publisher's blurb on his recent book, The Sense of Style, tells us that Pinker takes a pragmatic approach to good writing; one which avoids dogma, over-rigid rules and reliance on the complaint that good writing has gone into an irreversible decline. I think he is right on this. There is a danger for those promoting clear writing that they will be seen as pedantic, dogmatic, backward-looking and too judgemental. The test must always be: is the meaning clear and is the message conveyed in a style which is engaging and not exclusionary.

To conclude, let me share with you the best lesson I ever had on the writing of plain English. I was a very young journalist, not even a journalist, just an intern on a rather old fashioned women’s magazine. Among my many humble tasks was the selection and editing of the short stories that our dear readers sent in by the boxful.

My editor, a formidable woman by the name of Barbara Dixon, was the Olympic champion of plain English and I quickly learned that her distaste for adornment included pretty much every commonly used adverb and adjective in the English language. No one ever ran "quickly" in Ms Dixon’s world or laughed "merrily".

So on this occasion, as I approached her desk with the latest short story, I was pretty confident that I had scrubbed it clean of every frill as I handed it over. With her red pen poised, she scanned the pages until she came to the sentence. “He nodded his head.” Out went ‘his head’ with Ms Dixon exclaiming, “What else would he nod?” that statement followed by a loud recitation of every body part that one most certainly would never nod.  And I never needed another lesson.

Thank you for listening.