I have been reading Robert A. Caro’s masterpiece on the life of US president Lyndon Johnson, which I cannot recommend enough. It is not short (four gigantic volumes so far), but is compulsive and brilliant. The relevance of this to EU legal affairs is in its exposure of how the southern US states used states’ rights for decades to defend their inexcusable behaviour towards their black citizens. Each time a national civil rights bill came before the south’s national political representatives, they did not talk about racism and white supremacy, but about how the federal government had no right to interfere with precious states’ rights, and that the states should be able to manage their own business. In this way, they dodged reform.
Does that sound familiar to the EU debate? My point is not to compare traditional Euroscepticism to the awful reality that the southerners were defending - that would be totally wrong, and I apologise for any offence caused in advance - but to point out that states’ rights can be used to avoid positive reform, albeit of a gentler sort. Much good has come from European legislation, and to avoid it because of states’ rights is to use a formal position regardless of substance.
So what is coming up this year in the field of EU legal affairs to make Eurosceptics reach for their states’ rights arguments? I know it is already February, and I should have presented a timetable of 2013 activities at the start of the year. Last week, I outlined the current activities of the European Commission in trying to make the legal services market more competitive. This week, I add to the list by reporting what is coming in new substantive legislation affecting the legal profession.
Within a few days, we are expecting two important documents. The first will be the draft fourth anti-money laundering directive. Given the excitement around the last two, we are gearing up for action. The commission will be holding an opening conference on the directive on 15 March. At the same time, the Financial Action Task Force - not an EU body, I realise - is preparing an exercise on the points at which lawyers are vulnerable with respect to money laundering, and it expects to prepare, in due course, best-practice guidelines.
The second important document is a report on European judicial training (‘judicial’ is Euro-speak for all legal professionals), which we hope will highlight the imbalance in attention and funding paid towards the training of lawyers at EU level. Judges and prosecutors are easy to deal with, since they are government responsibilities, but lawyers, being private actors, have so far received a smaller size of the cake. This is despite the fact that lawyers are the first port of call for citizens with EU problems. We anticipate that the communication will point out this old imbalance, and maybe in time to lead to a correction.
Within weeks, we expect an announcement about an EU-US free-trade agreement. We don’t yet know what it will include, but if legal services are part of the eventual deal then the long-awaited goal of easier entry to all parts of the US legal market might finally be in sight. New York and California, to take two examples, have been open to foreign lawyers for some while, and are obviously attractive states. But equal access to other states has required so far a patient state-by-state negotiation – and there are fifty of them. A single agreement will make lawyers’ lives easier, but will not in itself be simple to accomplish. For instance, it will need to overcome the longstanding problem that the deal will be with the federal government while regulation of lawyers is dealt with at state level, usually by the State Supreme Court.
Also coming soon is legislation establishing a European Public Prosecutors Office (EPPO). The aim is to improve the protection of the financial interest of the European Union, which everyone - even Eurosceptics worried about fraud and other abuses against EU funding - can agree to in principle. But the EPPO raises potential worries, especially around its structure. It it is to be decentralised within the member states’ current legal systems that would be of less concern than if a supranational structure able to intervene in national courts is the outcome.
Towards the end of the year, a criminal law package is scheduled. This will cover three different proposals: legal aid in criminal law, the protection of vulnerable suspects, and the presumption of innocence.
There are continuing, existing legislative preoccupations (professional qualifications directive, data protection package, regulation on cross-border e-identification and trusted services). And of course the current struggle over what is called Measure C - in other words, the harmonised right of a crime suspect or defendant to access to a lawyer in any member state - continues, although the Irish presidency of the EU hopes to settle it during its six-month leadership.
States’ rights or EU rights? The debate has been opened by the prime minister, and my plea is that we look at the substance of the measures in question rather than just shielding behind the formality of a states’ rights position.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs