European guidance on relations between lawyers and judges sets benchmarks in areas where there are precious few.
The big EU news this week was that the Electoral Commission has asked that the question in the referendum bill currently under discussion in parliament be changed, since some voters are not aware that the UK is already a member of the EU. They might be confused by a question asking: ‘Do you think that the UK should be a member of the European Union?’
With this in mind, I shall tread carefully. I want to speak about judges, but some readers might not be aware that judges have been introduced in this country. They might think that we are still proceeding via trial by combat, and the use of ducking stools. I particularly want to speak about judges in the context of the Council of Europe. Whoa! There are a lot of assumptions here for people unfamiliar with the new political settlement. Some might confuse the Council of Europe (Strasbourg-based body with 47 members which, among other things, runs the European Court of Human Rights), with the Council of the European Union (the 28 member EU institution where member states government representatives sit).
Or maybe with the Council of Nicaea from 325, which we know so well? In fact, many people are aware of the Council of Europe since the current government so demonises it – despite the fact that one of its founders was the greatest Conservative leader of all, Winston Churchill. (You can hear him speaking French on their website, which he precedes with a warning: ‘Beware! I am going to speak in French.’)
Apart from the European Court of Human Rights, the Council of Europe has a proliferation of committees, entities and programmes, often with strange initials. CEPEJ is the main one for lawyers to follow, a committee of governmental representatives dealing with the efficiency of justice systems. HELP is good to know about, providing human rights training for lawyers. But I want to speak about CCJE, which is the Consultative Council of European Judges. It is currently working on an opinion ‘on relations between judges and lawyers for the efficiency and quality of justice’. This is its 16th opinion. The other 15 deal with a variety of topics, such as the ethics and liability of judges, or their training.
A draft of this new opinion – not the most up to date – is on its website, from which one can see the kind of principles that it will eventually espouse: ‘The drafting process for adequate procedural rules should include consultation with both judges and lawyers, not in the interest of judges and lawyers but to safeguard the rule of law’ or ‘it is necessary to establish proper communication between courts and lawyers in order to ensure the speed and efficiency of proceedings. The CCJE considers that states should introduce systems facilitating computer communication between the courts and the lawyers, so as to improve services for lawyers and enable them to easily consult the procedural situation of their files’, and so on. (The CCJE will have a meeting in the middle of November to finalise its opinion, and so this sample wording might not end up as quoted.)
These and similar recommendations from other bewilderingly initialled organs of the Council of Europe are in fact extremely useful. They set benchmarks in areas where there are precious few. Because they are hammered out between representatives of so many different countries, they create global standards which apply across legal systems and cultures. Governments cannot easily say ‘oh, that does not apply to our way of doing things’. We use Council of Europe guidelines all the time in our work, attempting to counter moves by governments which infringe the rights of citizens and lawyers. The classic Recommendation is No. R(2000)21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer. It is one of the leading worldwide formulations on the rights of lawyers, quoted frequently by us when governments mistreat lawyers.
The new CCJE opinion on the relations between judges and lawyers will establish standards not only for those Council of Europe countries where lawyers are not properly treated in the courts - Turkey and Russia come to mind - but also for those outside Council of Europe membership, such as Egypt.
I mentioned above that the Council of Europe is in Strasbourg. For those who have not yet caught up with the fact that we are in the EU, you might know it by its Roman name of Argentoratum. (In fact, transport to the city has not much improved since Roman times.) You will find something else familiar from the Roman map, to avoid too great a shock: Strasbourg is still within the same political settlement as the UK, but ruled from Brussels now, rather than Rome.
Jonathan Goldsmith is secretary general of 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