Jonathan Rayner meets the Law Society Brussels office, which lobbies hard for solicitors’ interests in Europe.
Even Sisyphus may have been daunted by the uphill struggle facing the Law Society’s office in Brussels. Its role is to represent the interests of the solicitors’ profession to EU decision-makers, many of whom are unreceptive because, increasingly, they see the UK as an irrelevance in Europe. The UK’s stance, member states complain, is consistently hostile to every EU initiative, in a knee- jerk reaction that is all about politics and not at all about justice, trade or the free movement of labour. So why pay the UK any heed?
The office also has a problem at home, where UK business is largely in favour of sustaining the lucrative trade links that the union provides. By contrast the more restive parts of the coalition government, UKIP, some of the public and the europhobic press consistently snipe at Brussels and the EU institutions that it hosts. The Brussels office, to mix metaphors, is swimming against the tide.
Some pan-European commentators are sceptical about the overall success of the EU project. Federation of European Employers secretary-general Robin Chater, for instance, says: ‘After more than half a century the EU remains a fragmented mix of national and local interests all in rivalry with each other. Officials in Brussels can dream of integration, but in reality the members of the EU club are only co-operating to the extent that it suits them.’
Chater points to the failure of air traffic controllers to accept the principle of a ‘single European sky’; to the refusal of Austria and Poland to apply a directive ensuring that minimum energy performance requirements are set for all buildings; and to Finland, which for 14 years has persistently declined to set up a race equality organisation in line with a race equality directive. The UK, for that matter, is years behind with its obligations to improve air quality in London and elsewhere.
In assessing the popularity of the EU, it is instructive to enter ‘Brussels’ into the Google news search engine and, on the first page, spot just one positive story. It was published in the Herald newspaper on 11 August 2014 and compliments the Belgian city on the quality of its chocolate. The other stories mostly trumpet the UK’s repeated threats to leave the EU. So why doesn’t the Law Society’s office, with its three lawyers and two trainee solicitors, simply pack up and go home? The Gazette went to Brussels to find out.
Brussels office head Mickaël Laurans, who has joint British and French nationality and studied law, including European law, in France and Britain, concedes that he and his team have ‘big-picture challenges’, but that they are determined to ‘up their game’ with new appointments and improved communications.
‘We represent the interests of the UK legal profession through direct contact with the EU institutions and members of the European Parliament (MEPs),’ Laurans begins. ‘We negotiate on behalf of UK government ministers when they are pushing for reforms or new regulations. We liaise with Law Society committees where there is a European angle to whatever initiative they are working on. We also help them with responses to consultations where Europe is an issue.
‘We support and advise UK law firms that are keen to establish a presence in Europe. And we normally have two or three trainees from UK law firms who will return home with a grounding in the mysterious ways of Brussels and the EU.’
After the recent European elections, Laurans and his team are ‘engaging’ with new MEPs and commissioners. And although still a ‘distant project’, he anticipates that moves to simplify cross-border conveyancing will require his team’s help to negotiate around the fact that whereas ‘most of Europe has notaries’, the UK has solicitors.
‘The Scottish independence referendum is also a big concern at the moment,’ Laurans adds. ‘We are the joint office for the law societies of England and Wales, Northern Ireland and Scotland. If Scotland exits the UK, who will put its case to Europe? What will happen to transactions in progress? Will lawyers in newly independent Scotland be recognised by the member states? What will be the impact on Scotland of no longer being in the EU?’
Next, the Gazette spoke to Emilie Balbirnie, a half Irish and half French policy adviser who studied in Dublin and Paris before taking a master’s degree in European law in Bruges. She explains that her policy area is justice, including civil, criminal, family and consumer law. What precisely does she do? ‘I was involved, for example, with helping the Law Society respond to the House of Lords’ call for evidence about the proposed European Public Prosecutor’s Office,’ says Balbirnie. ‘The Law Society’s criminal and EU committees were asked to submit evidence and I helped draft their responses.’
Balbirnie lists the big issues of the moment: ‘The procedural rights package for criminal law currently being debated by MEPs is absolutely crucial, except our government appears to oppose it out of principle.’ She adds: ‘One key feature of the package is access to legal aid for every European citizen anywhere in Europe detained by police. We already have this in the UK, so why can’t our government accept it at a European level?
‘The Law Society’s view is that the UK is – or was – a world leader in the provision of legal aid. Adopting it in Europe is not going to impact negatively on our domestic legislation. Neither is there any extra benefit to our legal system by opposing it. The government is against it simply out of policy.
‘It’s a classic conflict, it seems to me, between UK government dogma and what practitioners believe is best for access to justice. But if the UK wants to protect its common law, it should engage with Europe, not test Europe’s patience by persistently distancing itself.’
Balbirnie’s other current priorities are the usual suspects: the Common European Sales Law, with its controversial ‘optional instrument’ that allows parties to a transaction to choose whether or not to adhere to it; the European Arrest Warrant, which is said to be over-used by some states, while others argue over proportionality and who picks up the bill; and the UK government’s decision to opt out of 135 EU criminal justice measures, but then – after what could be a lengthy delay – opt back into 30 of them.
Cate Nymann, a graduate of Denmark’s Aarhus University and holder of a masters degree in EU politics from the London School of Economics and Political Science, is the office’s policy adviser for the EU internal market. Her work is business oriented, much of it focused on City issues such as insolvency and competition laws, and the EU-sponsored financial transaction tax. She tells the Gazette: ‘My biggest challenge is sometimes getting EU institutions and MEPs to listen to me. There is an assumption here that the Law Society shares the coalition government’s negativity where Europe is concerned, whereas in fact our priorities are the interests of the UK legal profession and improved access to justice.
‘The UK is viewed here as a “reticent member” with a knee-jerk opposition to everything European, whereas the Law Society attitude is in reality one of evidence-backed reaction to all proposed policies.’
Are relations between the UK and the rest of the EU really so dire? ‘Sometimes,’ Nymann replies. ‘One major sticking point is that the UK is used to having a majority government in parliament which always, eventually, gets its way. There is no such thing as an EU government. The parliament and ministers work through negotiation. They are always having to look for a compromise, which doesn’t sit well with UK politicians.’
Day-to-day Nyman does everything to promote the EU’s internal market. That means: ‘Direct representation to the EU institutions and MEPs. Liaising with the British Chamber of Commerce in Brussels. Providing input to thinktanks. Working on company law, governance, cyber security, risk management, data protection, privacy and anti-money laundering issues. Contributing towards the organisation of conferences and seminars. Advising UK firms that are visiting Brussels and even allowing them the use of our office facilities.’
The Gazette moves on to talk to trainee solicitors Sara Donnelly and Aideen McMahon (a third trainee, Ryan Mallon, has recently completed his time in Brussels and returned to the UK). Donnelly tells the Gazette that her training contract at home is with a directorate of legal services in the health and social care sector, where she is learning about medical negligence, employment law, procurement and family law. In common with McMahon, she is spending five months in Brussels as part of her training.
Donnelly says: ‘I was a complete europhile before coming to Brussels, but since getting here I have come to realise that the EU is a slow and cumbersome bureaucracy, like so many modern governments, but at the same time is 100% relevant to what we do as solicitors. It is not always immediately apparent, but when a national government – such as our own – brings in new legislation, its roots are usually in a directive from Europe. Our role in this office is to help make the law’s migration from Europe to Whitehall as painless and transparent as possible.’
McMahon, who has a training contract with London firm GT Stewart, says that Donnelly has ‘hit the nail on the head’ regarding the importance of the work of the Brussels office as a link between the EU’s and UK’s law makers. ‘We are involved before the law is enacted and can try and remedy potential problems arising from the deliberations of 28 separate member states,’ McMahon says. ‘As the voice-piece of the UK, we ensure every British citizen has a say.’
How did the Brussels job come about? McMahon recalls: ‘I put a request into GT Stewart, arguing that my experience in Brussels could open up new areas for the firm. I still believe that to be true. I’m able to spend lots of time looking at proposed EU legislation and secondary legislation that applies to the UK. I’ve also got plenty of time for drafting because I’m not dealing with clients all day. I’ll definitely be able to use what I’ve learned here in court when I get home.’
Donnelly says she went to her ‘boss’ and told him it was a ‘great opportunity’. She adds: ‘He even assisted me with the application and was generally very helpful. I’m confident that I will be able to give back as much as I have taken out.’
Both trainees admit that it has taken them three months just to learn how to navigate the EU and other European institution websites. ‘It’s a good skill to have,’ they say, ‘because to the uninitiated, the websites are a bewildering maze.’
Finally, the Gazette spoke to Antonella Verde, the person who is most people’s first contact with the office and who, after 13 years in the role, is best qualified to keep it functioning efficiently. However, she is more than just an office administrator. ‘I have regular catch-up sessions with Stephen Denyer [head of City and International],’ says Verde. ‘He is interested in every aspect of our work here.’
Verde also manages the database – ‘we are migrating to a new one in the autumn,’ she says – and co-ordinates and circulates the office’s various publications, such as Brussels Agenda and regular updates on EU law. These latter include updates on civil justice, family law, criminal justice, employment law, environmental law, company law, financial services, tax law, intellectual property, consumer law and case law updates from the EU’s top court, the Court of Justice of the European Union in Luxembourg.
The Brussels office of the Law Society may be facing an uphill struggle, but the representation of the interests of the UK legal profession to the EU institutions is in exceptionally capable hands.
How it all works
The easy one first: the EU and the Council of Europe – which hosts the (to many people) infamous European Court of Human Rights – are entirely different entities. The first is focused on trade, the second is the continent’s human rights champion.
The EU is a politico-economic union of 28 member states that aims to ensure the free movement of people, goods, services and capital across Europe. It also enacts legislation in justice and home affairs, and maintains common policies on trade, agriculture, fisheries and regional development. The Maastricht Treaty established the EU under its current name in 1993.
The European Commission is the executive body of the EU. It is made up of senior commissioners proposed by the governments of member states and by the staff that supports their work. Its role is to propose laws for adoption by the European Parliament and the Council of the EU. It has an office in each of the member states, which reports economic and other information back to the main office in Brussels, and acts as a spokesperson for media enquiries about EU policies.
The European Parliament has 751 MEPs elected every five years by citizens of the member states.
The council, sometimes called the Council of Ministers, comprises a national minister from each of the member states. (These ministers are also, of course, democratically elected in their home countries.)
The Council of Europe, on the other hand, is made up of 47 member states with a combined population of 820 million citizens and is the continent’s leading human rights champion.
Founded in 1949, it is older than the EU. It rose from the ashes of the second world war when Winston Churchill and other statesmen proposed a body that would monitor human rights across Europe.
Churchill encouraged the drafting of the European Convention on Human Rights, which was largely the work of British lawyers.
The Council of Europe’s statutory institutions are:
- The Committee of Ministers, made up of the foreign ministers of each of the 47 member states;
- The Parliamentary Assembly, composed of MPs from the parliament of each of the 47 member states; and
- The secretary general, who heads the secretariat or executive body of the Council of Europe.
Forty-seven judges, one from each member state, sit at the European Court of Human Rights. They are elected to the post in that each member state proposes three judges and there is then a ballot of the parliamentary assembly (made up of British and other MPs) to choose one of them. The UK’s current judge in Strasbourg is Paul Mahoney.
The Council of Europe is headquartered in Strasbourg, France, where its European Court of Human Rights hears and rules on alleged breaches of the European Convention on Human Rights by its member states.
Between 1959 and 2013, the court received 22,065 applications against the UK. Just 297 of these resulted in a finding of a violation of the convention, which is 1.35% of the total.
Looking closer at the figures, the court in 2013 decided 1,652 cases lodged against the UK. It declared inadmissible or struck out 1,633 of these, leaving just 19 cases. Another eight of these were found to involve no violation of the convention, leaving 11 applications where a violation was found.
So, in a nutshell, of the 1,652 cases lodged against the UK in 2013, 99.3% were unsuccessful.