Lawyers and the assault on truth

The Council of Europe (CoE) will soon be the last Europe-wide body of which we retain membership – unless and until this government, after our exit from the EU in two years’ time, takes us out of the European Convention on Human Rights as well.

In the meanwhile, the work of the CoE passes almost entirely below the radar of our national notice. We have political representatives from our major parties who participate in CoE decision-making, but they are rarely, if ever, publicised. If you scroll down the gallery of their 36 photographs – yes, we have 36 representatives, including substitutes – you would be hard put to recognise one. There is a handful of formerly well-known politicians among them.

Yet the CoE does important work affecting lawyers. For instance, its European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) produces the authoritative consumers’ guide to prisons, which is much used by some defence lawyers when arguing whether their clients should be returned to a particular European country to serve a sentence (or whether to do so would constitute ‘inhuman or degrading treatment or punishment’ because of the prison conditions). To produce its guide, the CPT organises visits to places of detention, to assess how the inmates are treated. CPT members are independent experts from a variety of backgrounds, including lawyers, doctors and specialists in prison or police matters.

The CoE’s Legal Affairs and Human Rights Committee is of particular interest. Its 2017 work programme lays out its priorities, including access by lawyers to detainees to ensure, among other things, the protection of lawyer-client confidentiality. Its other priorities include the need for more stringent legal safeguards to guard against abusive use of the Interpol system, and measures for protecting human rights defenders in member states.

But of most interest to us, the Committee has recently appointed a Belgian member as its rapporteur for the case for drafting a European convention on the profession of lawyers (she is Sabien Lahaye-Battheu, a lawyer). The Council of Bars and Law Societies of Europe (CCBE) has welcomed the step as of ‘vital importance’.

The case made so far for drafting the convention is interesting. The signatories to the motion behind it point out that when the rule of law is threatened, the rights associated with the exercise of the profession are also often restricted.

They refer to the CoE’s own Recommendation No. R(2000)21 on the freedom of exercise of the profession of lawyer, and the United Nations Basic Principles on the Role of Lawyers of 1990, but conclude that these serve as benchmarks only, being ‘soft law’ instruments without binding legal force. There is at present no international convention on the profession of lawyer. It is true that the right to a fair trial is guaranteed by article 6 of the European Convention on Human Rights, but this does not focus on the whole work of the profession.

None of the UK representatives in the CoE saw fit to sign the motion for a recommendation on this point, before it was passed – even though there were signatories from large members (Germany, France, Spain) and small (Armenia, Georgia, Azerbaijan). It would be interesting to hear from one of the UK members why this happened.

Here is one pressing reason why such a convention might be useful. We have entered a time when there is a sustained assault on the truth, even in the best democracies, and an assault, too, on methods for reaching the truth (journalists, judges and lawyers being among the targets). Yet we lawyers participate as key players in one of the state’s chief instruments for arriving at the truth.

We need not look just to the US for examples, even though its new president is a shining example of an attacker-in-chief. But here in the UK, in a country which values its oppositional style of parliament, and which glories in its adversarial court procedures, both of which are rightly seen as trusted methods for arriving at the truth, any laying out of alternate scenarios as to how the national steps we are currently taking might develop are shrilly attacked for being anti-democratic or unpatriotic. Politicians and newspapers lead the way in these assaults, hoping to silence other views. As lawyers, we believe in both sides having the right to put their case. We believe that that is the way that the truth is reached.

We need the part played by lawyers in long-trusted methods to be publicly reinforced in a convention, as a symbol of how democratic societies work. I hope that the new CoE convention on lawyers will be a support not only to us, but to democratic procedures as a whole.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs