Lawyers’ rights need greater protection

By Jonathan Goldsmith

For years there has been an interesting debate in Europe about whether protections for lawyers’ rights should be strengthened. The Council of Europe (CoE), which covers 47 member states including the UK, is considering whether continuing attacks on lawyers call for a new legal instrument.

In other words, are the CoE’s 2000 recommendation ‘on the freedom of exercise of the profession of lawyers’, R(2000)21, together with the rights embedded in the European Convention on Human Rights, enough to ensure that lawyers do not suffer when carrying out their duties – and suffer they do, as explained below.

Now a new CoE report says that our rights need a new binding convention specifically focused on lawyers. The report is almost unfindable on the CoE website, and labours under the distinctly unappealing title of ‘Feasibility study on a new, binding or non-binding, European legal instrument on the profession of lawyer – possible added-value and effectiveness’. 

Despite this obscurity, and the fact that it is written as a technical report for a technical committee and so not quite up to the excitement of an airport thriller, it turns out to be one of the most useful documents written about the European legal profession for a long time. And it is by an English barrister, Jeremy McBride.

It is useful for many reasons. First, it recites the violence and threats that lawyers face: murder and other assaults; being prevented from meeting clients; communications being monitored and homes and businesses searched; forcing lawyers to act as witnesses against clients; using admission or disciplinary procedures to exclude those whom the authorities consider politically undesirable; and creating bars which are not independent enough to protect members.

Each of these categories is documented with cases. And the report states that it is impossible exactly to quantify the problem, since there is no place in Europe or elsewhere which monitors the position of lawyers alone. Attacks on lawyers are monitored via other collective mandates, such as with human rights defenders or with judges.

The report’s next useful function is to gather into one place a list, followed by an analysis and comparison, of the existing international standards on lawyers. There are not that many – the principal ones being the UN Basic Principles on the Role of Lawyers, the CoE’s 2000 recommendation, the casework of the European Court of Human Rights (ECtHR), and the charters and principles of organisations such as the Council of Bars and Law Societies of Europe and the International Bar Association.

The report becomes even more useful in listing those cases decided by the ECtHR where the various standards were mentioned, which is helpful to lawyers seeking precedents. And it goes still further, bringing into one place a summary of all the cases before the ECtHR involving lawyers’ rights. Although these can be found in separate guides prepared by the ECtHR to articles 6 and 8, they are here in one location.

And in case you think this affects lawyers in faraway countries of whom we know little, I counted eight reported cases brought against the UK for alleged breaches of lawyers’ rights.

The report concludes that there are various reasons why the existing instruments are not adequate to protect lawyers. First, the CoE’s 2000 recommendation is not enforceable and does not cover all the rights at risk. Second, the European Convention on Human Rights – not being a convention aimed specifically at lawyers – does not do the trick either, for instance because some of the rights have to be enforced by the lawyers’ clients, and also because it is a very slow and cumbersome mechanism: there can be delays of four to six years before judgment is given and, after judgment, several more years may elapse before it is executed.

But a solution is more difficult to find than might be imagined. First, some of the terms which belong to lawyers’ rights, such as independence and even who might qualify as a relevant lawyer, are hard to define, given the diverse arrangements around Europe. Second, in view of the existing breaches of the non-binding 2000 recommendation, it might be a step too far to expect the CoE’s member states to agree to a binding instrument which goes further than that. Third, some feel that a defined set of standards is likely to go out of date quickly as the profession changes rapidly, and that broader principles are better. Fourth, how would any new instrument be enforced, given the pressure on CoE resources?

Despite these problems, and as stated, the report concludes that a new instrument is needed. Along the way, it provides a useful compendium of lawyers’ rights and how they have been enforced to date. It is in all our interests that its conclusion is now implemented.

Jonathan Goldsmith is member of the Council for EU Matters of the Law Society of England and Wales and former Secretary General of the Council of Bars and Law Societies of Europe (CCBE).

Link to the original publication on the Law Society Gazette.