Equal Treatment of European Citizens

Speech by Ann Abraham at 'The Seventh Seminar of the National Ombudsmen of EU Member States and Candidate Countries'

Paphos, Cyprus   5-7 April 2009

I am grateful to Eliana Nicolaou and Nikiforos Diamandouros for the opportunity to contribute a perspective from the UK to the important issues we are considering today; and to add my thoughts to what has been said by my colleagues from the Netherlands and Luxembourg.

I want in my brief presentation to consider the particular and strategic role of the Ombudsman in promoting the equal treatment of EU citizens and to identify what I consider to be the niche contribution that an Ombudsman can make.

I will also reflect briefly upon the UK experience of tackling historic areas of inequality such as on the grounds of race, gender and disability since the 1960s and 1970s, as well as on the more recent experience of my own Office.

Let me start, however, by saying something about what I see as the overarching political challenge, certainly in a country like the UK. Much of that challenge does indeed stem from the long-standing existence of a broader equality agenda, rooted in Britain’s colonial past, which means that EU citizenship has to struggle with competing policy priorities for space on the equality radar.

In Great Britain, we have recently established an integrated Equality and Human Rights Commission, which has at the top of its list of ‘must do items’ tackling the gender pay gap, countering Islamophobia, and equalising the life chances of those from ethnic minority backgrounds or those who are disabled.

It is true that the recent influx of workers from eastern Europe has put the question of European citizenship firmly on the map, but the current economic downturn, and it has to be said the ‘Obama factor’, are competing trends against that brief assertion of a European narrative.

There is, of course, as well the unwelcome spectre of protectionism, whether of the nation state or even the larger Union. I am pleased to note that the idea of ‘British jobs for British workers’ did not win anything approaching universal support, but I suspect many would be equally wary of suggesting that European solidarity should be secured at the expense of all transatlantic and the many other historic ties. There is, as I say, a political challenge that we cannot simply ignore – or pretend does not exist.

Having said that, I can certainly cite my own experience as evidence of the increasingly trans-national context within which Ombudsman work is conducted. One of the most labour-intensive and contentious investigations that I have undertaken in recent years was a report on the collapse of the Equitable Life Assurance Society and the part in its downfall played by the actions – or more correctly inactions – of the UK government’s regulatory agencies.

One of the striking things about that investigation was the international composition of the complainant group and the trans-European ripples caused by the implosion of a UK-based financial institution. And it was the first time that a UK Ombudsman found themselves in Brussels giving evidence to the European Parliament’s Petitions Committee.

But what should be the Ombudsman’s response to all this? What can we as Ombudsmen do about this potential injustice to EU citizens, which has its origins in a number of factors, which no doubt include the ineffectiveness of some EU law, the mixed and variable enthusiasm for the effective transposition of EU Directives, the lack of co-ordinated outreach to EU citizens as well as plain, good old-fashioned maladministration?

I would suggest three prongs in particular as part of an overall strategy.

  • First, I suggest we return to basics, to our core commitment to human rights values, as enunciated so eloquently in recent years by the European Ombudsman (and here I am thinking, for example, of the Strasbourg statement about the role of national Ombudsmen) and by the Council of Europe Human Rights Commissioner, who has consistently argued that national Ombudsmen institutions should find a proper place alongside national human rights institutions as part of what he now refers to as ‘national human rights structures’. Our concern for the equal treatment of EU citizens must draw its strength from, and find its underpinning rationale in, that basic commitment.
  • Secondly, we should derive from that basic commitment a concern for equal treatment as ‘a matter of principle’. By that I mean that when we come to shape our understanding of ‘good administration’ (the flip-side of maladministration), we should include within what I have called in my office the Principles of Good Administration, and what elsewhere finds form as the European Code of Good Administrative Behaviour, a principle of fairness and proportionality that embraces respect for diversity, impartiality in decision-making, and equality of access. The positive value of an equality principle framed in that way is, I suggest, a powerful lever in getting public authorities to cure what the EU referred to in its 2004 ‘Europe on the move’ publication as the ‘hiccups’ that still occur and which force people to face lengthy administrative procedures in obtaining residence documents or securing the rights of family members, especially when the latter are not themselves EU citizens.
  • But thirdly, and here I want to draw on wider UK experience since the 1960s, I suggest that an equality principle of this sort needs to look beyond the bare concept of ‘equal treatment’ to something more assertive, something more positive: equality enunciated, in fact, in what I would call a ‘positive accent’. Critical to that positive accent is the insight that equality is not always, or even primarily, about the ‘same treatment’ but just as often, and more importantly, about ‘different treatment’. In the UK, that insight has been most explicitly recognised in the concept of ‘reasonable adjustment’ that lies at the heart of our Disability Discrimination Act 1995. That notion of ‘reasonable adjustment’ in turn was derived from the earlier US and Canadian concept of ‘reasonable accommodation’, and has more recently informed the EU Employment Framework Directive in its coverage of disability rights. This is not however of relevance just to disability rights. This positive accent reflects the more general evolution of equality law in Britain and Northern Ireland, which has effectively turned anti-discrimination legislation on its head. Instead of the focus being on remedial action undertaken in the courts by individual ‘victims’, the emphasis has shifted to the obligations placed on public authorities to promote and protect equality in their policies, practices and procedures. This is an emphasis, in other words, on collective prevention rather than individual cure. It is an emphasis that is associated in the public imagination with the inquiry conducted some years ago into the police investigation of the murder of a young black Londoner, Stephen Lawrence, and which led to the introduction of the so-called public authority race equality duty in the UK. But about the same time, and in response to the political ‘troubles’ in Northern Ireland, similar initiatives were being tried and tested with considerable success in Belfast, as part of the attempt to address historic patterns of disadvantage and inequality between the religious communities there. And it is an approach which has now been extended to disability and gender equality in the UK, and which will shortly extend even further to discrimination on grounds of age, sexual orientation and religious belief.

I have recently discovered for myself what this ‘positive’ approach to equality can mean in the context of an Ombudsman investigation. Just a couple of weeks ago I published a report called Six Lives, which concerned the separate deaths of six people with learning disabilities whilst under the care of the National Health Service in England.

My findings were very much founded in the recognition that the human rights principle of equality had not been observed, not in the limited sense that there had been a failure to observe procedural equality or that there had been deliberate or reckless disregard for the rights of the disabled people concerned. Instead the breach of the principle of equality was rooted in a failure to recognise difference, in a failure to get beyond a ‘one size fits all’ approach, in a failure to do things differently for once, even if that meant going the extra mile and leaving behind the bureaucratic comfort zone.

So where does this lead in practice for the Ombudsman community when it comes to the business of curing the hiccups to which the EU has referred.

Let me point to five potential initiatives, if we are to overcome what Sherlock Holmes fans among you will recognise as the ‘dog that didn’t bark phenomenon’, that is, the danger that we will conclude there is no problem because we hardly ever get to hear from complainants on these issues.

  • First, a positive equality principle entails effective outreach work, so that we can take that extra initiative to touch the lives of those from this particular vulnerable group in ways that make sense to them and in places where they already find themselves. We cannot, in other words, assume that immigrant communities, even from as close to home as the rest of the EU, will already be easy recipients of our existing outreach work.
  • Secondly, having taken that outreach initiative, we must help level the playing field by enabling real access to our complaint procedures, not only by ensuring that we have the necessary linguistic mechanisms in place but by ensuring too that we use plain language even in translation, and that our responses are sensitive to even the less obvious social and cultural features that might differentiate particular immigrant groups.
  • Thirdly, we need to reinforce the message with the public authorities we scrutinise that the ‘one size fits all’ mentality, convenient though it may be from a bureaucratic point of view, is simply not viable in this context. There has to be sufficient flexibility and emotional intelligence within ‘the system’ to adjust policies and practices to meet the needs of the particular situation, to make a reality of equality for EU citizens who might otherwise find themselves at the mercy of the host nation and its idiosyncratic ways
  • Fourthly, we should not shy away from using the language of fundamental rights to describe the sort of maladministration that denies an EU citizen full social and economic participation in the life of the host nation, because residence documentation takes too long to process, driving licences and educational qualifications are not readily recognised, or health records simply cannot, for some mysterious reason, easily negotiate the electronic airways. In such circumstances, what is at issue might well be a bureaucratic ‘hiccup’ but what is fundamentally at stake will often be far graver than that.
  • And finally, we should be willing to put our heads above the parapet, to make the case for the more general public benefit that can be derived from putting right at source the sort of routine disadvantage that this or any minority group might experience. Despite the misgivings of the vocal majority, it is in the interest of the common good, not just a minority, that the principle of equality be protected and nurtured. This is not a matter of preferential treatment for ‘foreigners’, but of humane treatment for all at the heart of the state.

And so I say by way of conclusion, by all means let’s be realistic about the challenge these issues pose for us in the present economic and political climate. But let us not understate the niche contribution that we as national Ombudsman institutions can make, not least in curing the hiccups to which any administration is prone.

But let us also be mindful that curative practice of this sort entails a bold vision of the equality principle, enunciated in a positive accent; and that such a vision in turn commits us to reaching out to this group, and indeed other vulnerable groups, by offering the means of empowerment that goes with ‘finding a voice’, which is, after all, I take it, the whole point of having an Ombudsman in the first place.

Ann Abraham
April 2009