Transparency, Legitimacy and Citizen Engagement – Future Prospects for the European Union
Speech - Oraş Florența - Ţară Italia - Datele Joi | 24 mai 2018
Good afternoon everyone. I’m delighted and honoured to be delivering this TARN lecture at the European University Institute in Florence. This really is one of the intellectual powerhouses of the EU and I know that the work that goes on here is invaluable in developing our thinking and understanding of governance and democracy in the Union, the thinking no doubt stimulated by these exquisite surroundings and location.
I appreciate also that my lecture comes at the end of a two-day conference and no doubt you are all looking forward to being able to relax after such intense deliberation on information sharing and interoperability. The renaissance theme may already have been done to death as we embark on a new era of data protection rights and obligations under the General Data Protection Regulation. That has of course been the backdrop to this event, but I would like now to reflect on some of the wider aspects of information sharing, not just among institutions, agencies and trusted partners, but with citizens, NGOs and interested parties, who can contribute effectively to democracy in the EU only if they have maximum access to the information needed to engage with the EU and its work in a meaningful way.
Arguably, this aspect of contemporary democracy has become the critical one as never in recent global history have we seen so many battles, political, cultural, or technological being so visibly played out on the battleground of information control and flow.
Two nights ago I watched the European Parliament quasi hearing with Facebook’s Mark Zuckerberg in Brussels and observed what was being attributed , whether overblown or not, to his creation, nothing less in some eyes than the disinterested manipulation of the democratic process.
As European Ombudsman, transparency is central to much my work and my office is currently addressing the need for greater transparency in the Council’s legislative process. I don’t need to explain to this audience the process of law-making in the EU. But what has been very evident in recent political debates over EU membership in some member states - most dramatically in the context of Brexit - is a lack of understanding of the extent to which EU laws are made not simply by the European Parliament, on proposals from the European Commission, but by all of the member states acting through the Council.
Whilst the ability to hold the EU institutions to account is, of course, a key aspect of our democracy, citizens should be able to hold their own governments, at national level, accountable for the decisions they take on EU laws. But the huge pool of at times deliberately engineered ignorance around this process can allow a dystopian image of the EU to flourish. Add that to the administrative jargon that describes those complex processes – trilogues and comitology for example – and a perfect storm of citizen alienation can erupt.
The idea that laws are made in an unaccountable political bubble in Brussels or in Strasbourg has been used as a means of distancing national governments from responsibility and accountability for those transnational legal instruments. My strategic inquiry into the transparency of legislative discussions of preparatory bodies of the Council led to me making three recommendations and a number of suggestions for improvement to the current system. The recommendations go to the heart not just of the issue of transparency but of EU democratic legitimacy itself.
My inquiry revealed that there is no consistency of approach in recording the positions taken by individual member states on particular aspects of draft legislation. While the documents inspected were sometimes complete in this regard, more often there were only vague references to alternative stances taken, without saying which member state had allied themselves to which position. Patterns emerged. Files deemed to be politically sensitive or to involve large budgets were far less transparent and it was clear that the information tap did not drip consistently or uniformly.
Given the decision, just a few years ago, of the General Court in the Access Info Europe case which supported the appropriate disclosure of member states’ positions in response to access to documents requests under Regulation 1049 of 2001, I recommended to the Council to record Member States’ position on legislation consistently.
If member states’ positions are not systematically recorded, they cannot be disclosed of course, a point that wasn’t lost on the Council who took the literal meaning of the ECJ ruling but in many cases, certainly not the spirit. Yet it is basic good administrative practice to record the positions taken as a key part of a legislative discussion.
Opening up the law-making and decision-making process of the EU has to be a pre-requisite for enabling citizens to get closer to, and, if the opportunity is there, to participate in those processes. This means that they must have timely access to the information about what is happening, where, when and involving whom. The ability to see and know what’s going on, and to have ready access to the documents which support or evidence those formal processes is a good way of engaging citizens and engendering trust. Otherwise, only those in the know, with access, and with money to throw at lobbyists, will be able to influence while a confused and disengaged citizenry sits on the sidelines.
The relationship between transparency and trust is not a straightforward one. No one would dispute the premise that an absence of transparency engenders distrust but much depends on what is revealed through transparency. Citizens are often dependent on intermediaries such as broadcast and news media for selecting the issues to come to their attention and choosing how to present or interpret them. And in today’s super saturated media space, where all of us can tailor our own media bubble and stay in it, the challenges of transparency, of making people aware of issues that are important to their lives, are enormous.
It’s also important to acknowledge the paradoxes of transparency. Very little was hidden about Donald Trump for example. Not his misogyny, not his dog whistle racism, not his questionable business practices, not his continued exploitation of his Presidency for family gain. He continues to flourish partly because he and his acolytes have so brilliantly manipulated the social media zeitgeist to amplify and distort, that the political and other norms we complacently thought were impregnable have been shredded.
And that serves to focus all of us on how we begin to re-engineer the transparency debate in order to offset the toxicity of fake news, of alternative facts and even at times of the toxic genius of Big Tech.
Your conference on information sharing coincides with tomorrow’s implementation of the new European Data Protection Regulation. The relationship between data protection and transparency is at times a problematic one. Often data protection and transparency are seen as opposites, in conflict. Some prefer to see them as complementary, or two sides of the same coin as both regimes concern the appropriate release of data in a way that best serves the public interest.
The frequency with which data protection is cited as a reason for not disclosing information about how public money is spent or who has made or influenced a public body’s decision making can be a source of frustration. This is using data protection laws not to protect legitimate interests but rather to shield individuals or institutions from accountability.
I recognise of course that one of the key themes of the GDPR is to give citizens greater control over their personal data and that is welcome and is an interest to be protected. Like you I’m sure, my inbox has been flooded with requests and pleas for me to stay in touch with all sorts of online companies as the new compliance laws loom. I think all of us have felt a sense not just of liberation as we free ourselves from spam, but also a new sense of control over our personal lives and possibly a deeper understanding of what we had been giving away for free and with no real sense of the consequences.
Recent revelations as to how our personal data has been used, in a distinctly non-transparent way, have been disturbing. Not only have these processes encroached on our own privacy by divulging huge amounts of data, but our data has been used, allegedly, in attempts to at best influence, at worst subvert, the democratic process.
The activities of Cambridge Analytica and Facebook are rightly coming under enormous public scrutiny and it is impressive that the EU is taking a global lead in relation to the regulation of Big Tech and in forcing those enormous companies to stop sidestepping their own responsibility when it comes to enabling these profoundly dangerous practices. The parading of innocent geeky ignorance is well past its sell by date.
It’s not clear yet where the various investigations and inquiries will lead, but this episode has certainly raised public awareness of some of the risks we run when sharing personal information via social media. Combined with the flurry of activity in the run-up to the implementation of the GDPR, we as citizens can no longer either claim complete ignorance of the potential consequences of inappropriate data sharing.
This, of course is why rules on public access to documents have to be qualified by exceptions which protect legitimate interests, be they personal, commercial, national or international. Freedom of information cannot be a “free for all” and nor is it, yet I find myself frequently explaining that good FOI acts, or access to documents laws, allow for non-disclosure if in the public interest.
Yet my concern as the complaint handler for the EU rules on access to documents is that the regime puts insufficient emphasis on the public interest and yields instead at times to the protection of the interests of the institutions. The legal rules, in the regulation itself and particularly in the way the courts have applied them, put the emphasis on the requester to identify some specific factor demonstrates an overriding public interest. This removes from the institutions the responsibility to reflect objectively on where the public interest really lies, in anything other than a cursory manner. This situation contrasts sharply with the provisions of many national freedom of information laws, including those in Ireland, where, as Information Commissioner, I had wide powers to assess the public interest and require disclosure. Such an Information Commissioner role, with binding powers does not exist at EU level which means that in general – given the burden of going to court – it’s the institutions that control the information flow.
Another key area of my work as European Ombudsman is ethical conduct within the institutions and agencies. This is another area where transparency in governance can reveal situations that may reflect well or badly on the EU, which in turn will have an impact on how citizens view the Union. The case of former Commission President Barroso for example, and his decision to join Goldman Sachs, was mediated globally in a way that pandered to the worst, inaccurate, image of the EU, of institutions and personnel too busy looking after themselves to look after the public interest. It was instructive, and uplifting, in that case, that the people who expressed most concern about the affair were the hardworking and committed EU officials themselves.
How appointments are made and the transparency of the procedures is bound to impact on how the institutions are viewed but again, citizen engagement in these processes can be difficult.
This time next year we will be in the throes of the campaign period for the elections to the European Parliament. Once the new Parliament has been elected, talks will begin to forge alliances, divide the political spoils of committee chairs, etc, and, importantly, elect the new President of the European Commission following the Spitzenkandidat process. All this will seem remote and inaccessible to the vast majority of EU citizens as many do not know which national parties or individual candidates align with which EP political group let alone what position the political groupings take on a myriad issues that affect their lives. It is important to attempt to narrow that knowledge gap.
I also deal with institutions like the European Central Bank, which plays an important role in terms of the financial health of the Eurozone and I know that you take a particular interest in the ECB here as you observe how it handles its independence within its mandate.
In that regard you may be interested in a recent complaint I dealt with about President Mario Draghi’s membership of a Washington based forum called the Group of 30, which includes some members from private financial institutions either directly or indirectly supervised by the ECB. The complainant alleged that membership – as opposed to normal participation in its events – compromised the independence of the Bank.
I recommended that Mr Draghi suspend his membership of the G30 until he retires next year, precisely incidentally in line with what Janet Yellen did when she became head of the US Federal Reserve. She stepped down for the duration of her mandate and re-joined the club when she left the Fed a few months ago.
Mr Draghi however refused, not recognising any conflict of interest or any inappropriateness in belonging to a private club as a supervisor alongside the supervised. The matter does raise questions around the accountability of the ECB although I should point out that the Bank did make important changes vis a vis stakeholder engagement following collaboration with our office on another matter some years ago.
You may now feel that the picture I’m painting is a rather negative one, but I do not mean it to be. The EU administration is a highly evolved one and its standards of transparency and ethical conduct are generally high when compared to many of the Member States and other countries around the world.
I might make the analogy with parenting; the children we tend to be toughest on are those with the greatest potential, the ones we really want to live up to high standards and who we know are capable of so much more. I am from a generation of Irish women that owes much of its liberation to our membership of the EU and like many of you, I am committed to its success not just for its own sake but for the sake of the wider world.
With the United States in a protectionist and nationalistic mood under Trump and with the UK immersed in its own internal meltdown the EU has to continue to be a global standard bearer when it comes to fundamental rights, including the fundamental right to good administration.
And all of this necessarily feeds into the current Future of Europe debate. How does the Europe we want to create align with its founding values, with the heroic impulses that created it and which we celebrated last year on its 60th anniversary?
The European Parliament has been the forum recently for some bold and stimulating exchanges of views. President Macron has galvanised the debate, with his proposals for further integration, proposals particularly challenging in a world and in a Europe partly in thrall to protectionism and nationalism.
We cannot know how this debate will develop but the democratic ideals invoked have to be aligned with their practical and honest implementation on the ground including within the EU institutions, agencies and bodies. Rhetorical vision is one thing, vision implementation is quite another.
The EU perhaps also needs to do is to believe in itself more, to believe in its power, in his capacity to use soft power to bring about transformative change not just in Europe but globally and we can see glimmers of that in the manner in which it is stepping up to the technology regulation including data protection challenge. Hopefully the next time Mr Zuckerberg comes to Brussels, the relationship between the regulator and the regulated might be a little more appropriate.
But to maintain citizens’ trust and belief in that future, the EU also needs to show that problematic issues exposed by the Barroso and the ECB cases are understood and dealt with. They cannot be allowed to feed a populist story that - despite the rhetoric - the EU is in thrall to a globalisation model of the future – underpinned by the wealth and reach of global corporations – that has no place for ordinary people who feel their future under threat from the twin giants of globalisation and technological innovation.
These issues also distract from the engaged and citizen focused work done throughout the EU institutions by ordinary EU civil servants – work that my office celebrated last year through an awards for good administration initiative – and which does not get the media attention it deserves.
A distorted image of the EU, of its worth, and of its values also fed the Brexit referendum. We may think that the obvious, inevitable, difficulties which the UK is facing will be enough to ensure that no Member State would ever want to follow the path of leaviing but that sort of complacency would be dangerous. Populism is still on the rise in some quarters and while the outcome of some national elections has seen less support for anti-EU sentiment than was feared, the populist threat has not passed as we are currently seeing here in Italy.
The Trump administration has survived longer than many of us might have expected. Some Member States are governed by illiberal regimes, whose values and standards appear to be at odds with those in the majority of the Union and the political and ethical challenges thrown up by those regimes and by migration are significant.
The EU needs to be clear and strong in demonstrating to its citizens the benefits of positive engagement with its work, in order to counter the siren calls of the populists with their often unrealisable promises, raising unrealistic expectations.
As leaders in academic thinking in the EU, you all have a key part to play in helping to inform the debate on the future of Europe. You have an important role in making sure that lessons may be learned from the past and models of good supranational governance developed for the future. Your work is admired and respected in all the institutions and agencies, not least my own. I commend your endeavours and look forward to our continued collaboration.