Like London buses, issues do not come singly but in clusters.
The right to a lawyer is one of those that is arriving in many different forms all at once at the moment.
Last week, I wrote about a recent European Court of Justice decision on the right to a lawyer in legal expenses insurance cases.
This week there are three further examples of this fundamental right in the news, in different areas of law.
First, and most importantly, and as the Gazette signalled earlier in the week, the European Commission published a draft directive on the right to a lawyer for suspects and defendants in criminal cases.
The importance of this step cannot be over-estimated, since - if it is passed into legislation - it will guarantee the following important rights around the EU:
- providing access to a lawyer from the first stage of police questioning and throughout criminal proceedings;
- allowing adequate, confidential meetings with the lawyer for suspects to exercise effectively their defence rights;
- allowing the lawyer to play an active role during interrogations and to check detention conditions;
- making sure that the suspect is able to communicate with at least one family member or employer informing them of the arrest and custody;
- allowing suspects abroad to contact their country's embassy or consulate and receive visits;
- offering people subject to a European Arrest Warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it was issued.
In Belgium, the suspect cannot contact a lawyer until 24 hours after being arrested, but a reform is under way – and so on.
(For those who would like to find out the state of rights in all EU Member States, there is a magisterial study commissioned by the European Commission which details them Member State by Member State.)
As is clear from the list of rights above, the draft directive also deals with the suspect’s or defendant’s communication rights, but not with the right to legal aid, which will be dealt with later.
It turns out that the European Court of Human Rights is having the same debate, but from a different perspective and in the field of human rights.
As is well known, the Court suffers from a deluge of cases with which it can barely cope.
Some member states of the Council of Europe have suggested introducing a fee for applicants, which has obvious disadvantages in terms of access to justice, but might reduce the number of cases.
Now the Court, which opposes the introduction of a fee, has suggested, among other things, that applicants should be obliged to use a lawyer from the moment of the application (as opposed to having an obligatory representative from the moment when the Court accepts the application, which is currently the case).
In the past, when the CCBE has discussed the matter, we have not supported the mandatory use of a representative from the first moment, on the grounds that that, too, is an obstacle to access to justice.
But now the position has changed.
It looks as if the choice is now between the introduction of a fee and the mandatory use of a lawyer from the moment of application, which is a different context.
We are in the process of consulting our members again.
And, finally, there was bad news for in-house counsel on the right to use a lawyer of one’s choice.
In a recent decision in Case T-226/10 before the European General Court, the Court rejected an appeal by Polish telecoms regulator, UKE, of a European Commission decision vetoing its regulation of the Polish market for IP-peering, on the grounds that the authority put forward its in-house legal staff to plead the case, rather than an external counsel.
Under the Court’s rules, only Member States and the Commission are allowed to represent themselves using internal legal staff. All others are required to hire an external lawyer to argue the case.
Apparently, there is disappointment among lawyers following such cases that a substantive decision was not made on the point of law at issue – but that will be nothing compared to the disappointment of in-house counsel at another blow addressed at them by the Court.
All in all, chiefly because of the European Commission’s important proposals, this has been a good week for the right to a lawyer – good for citizens primarily, and good that the services of a lawyer have been recognised so resoundingly.
For in-house counsel, their struggle for recognition will doubtless go on.