By Maria Ślązak President of the (CCBE) Council of Bars and Law Societies of Europe
On 22-25 February 2015, I had the privilege of attending the Global Law Summit at the Queen Elizabeth II Conference Centre in London, an international event gathering lawyers, judges, business leaders and public sector officials from around the world. Distinguished speakers including the Ministers of Justice from seventeen countries discussed the challenges of modernizing justice systems and protecting the public from today’s global threats while preserving fundamental rights.
The event marked eight hundred years since the sealing of Magna Carta, a document which has inspired lawyers and non-lawyers for generations and influenced the global legal history. This anniversary truly puts our collective history in perspective.
The opening of the event on 22 February coincided with the meeting of the Standing Committee of the Council of Bars and Law Societies of Europe, on invitation from the Law Society of England and Wales at its home in Chancery Lane.
Founded in 1960, the CCBE is the representative organisation of more than one million European lawyers through its member bars and law societies from thirty-two full member countries, and thirteen further associate and observer countries. It is proud to count amongst its members the Law Society of England and Wales, the Faculty of Advocates of Scotland, the Law Society of Scotland, the Law Society of Northern Ireland, and the Bar Council of England and Wales.
Among the most important of the CCBE’s missions are the defence of the rule of law, human rights and democratic values. The right of access to justice and the protection of the citizens are of particular concern to us as well.
Attending the Global Law Summit was an opportunity to meet some of the most brilliant minds in our field and hear policy-makers from around the world discussing the past, present and future of fundamental rights and the administration of justice.
The past of course holds no secret to the members of the legal profession – as the popular quip puts it, we are ‘the only people who walk into the future looking backwards’. The future is another matter in an increasingly globalized world where the mediatisation of non-state violence puts into question some of our core freedoms and rights. What future evolutions will shape fundamental rights in Europe?
Fundamental rights and the rule of law
Fundamental rights spelled out in any shape or form are meaningless without the legal, political and social infrastructure needed to apply them in practice. This includes at its core the principle of the rule of law; as well as access to effective remedy and a working administration of justice.
The defence of the rule of law is one of the most basic principles held by the CCBE, but one that cannot ever be taken for granted. For many of our colleagues who practiced law or grew up behind what was the Iron Curtain, it certainly remained a dream out of reach in political systems dominated by totalitarianism.
Across Europe budgets for justice and legal aid have been frozen or cut in the wake of austerity policies and reduced government spending. Court fees have also been increased to raise income, with the effect of discouraging citizens from taking their conflicts to the courts. These added costs prove too much for millions of citizens who risk losing their fundamental right of access to justice.
The CCBE has called on the EU to act decisively in support of an affordable, accessible and independent justice. The provision of adequate legal aid is essential to the administration of justice by ensuring an equality of arms between the parties. Legal aid as a fundamental right should therefore be made effectively available to all in civil and criminal matters, through the establishment of a specific EU budget line to ensure either the development of a European legal aid scheme or to support national schemes within Member States.
Legal aid should in principle cover all legal areas and jurisdictions, including alternative dispute resolution (in jurisdictions where it is available), the assistance of a lawyer at all stages of the proceedings, the assistance of experts, translation and interpretation, and other trial costs. Specific assistance should be given to particularly vulnerable groups and to cross-border trials, with the help of a set of common EU minimum standards for granting legal aid.
Instruments in this area would benefit from information campaigns for citizens on how to receive legal aid and from online application systems featuring interoperability between public services.
Lawyers play a key role in making access to justice a reality: targeted training for lawyers who provide services in the framework of legal aid would also enhance quality of service and efficient proceedings.
Fundamental rights should be available to all at no charge – but funding is essential to make them a reality through the justice system. Overarching principles are meaningless without an effective administration to implement them.
In this context, e-Justice offers some potential to allow public administrations to improve service quality and reduce costs, while saving businesses and citizens both time and effort. Making the administration of justice faster, less costly and more accessible can only support a sorely needed economic recovery across the European continent.
We need however to keep in mind that the continued training of legal professionals in the use of these tools is essential to maintain the equality of arms in the courtroom. Careful attention should also be paid to the growing digital divide, to ensure that the most vulnerable citizens are not prevented from exercising their rights due to inequality in access to digital tools.
We see here that from the rule of law stems a viable ecosystem that allows for the growth of business, security, equality, quality of life, and certainty of the future.
Fundamental rights and the European project
Eight hundred years: this extraordinary longevity is living proof of the enduring power of the law. The history of the Magna Carta and the Common Law shows that we can change and achieve progress while staying true to the values that define us and the principles that guide our collective action, and that the two are not mutually exclusive.
In contrast, how old are the Council of Europe and the European Union? Let us look at the European instruments that guarantee our fundamental rights: the European Convention on Human Rights and the European Charter of Fundamental Rights are mere youngsters at respectively 65 and 15 years old. Yet what will be left of them eight hundred years from now? In fact, much like ours, their destiny will be determined by how they live, and how they adapt to the world around them. Fundamental rights are living things, and their instruments are evolving and adapting. The Charter of Fundamental Rights, for example, gathers case law from the Court of Justice of the European Union, the rights and freedoms enshrined in the European Convention on Human Rights, and principles from common constitutional traditions of the member states – including the Magna Carta. It also includes decidedly modern rights such as data protection, online privacy, guarantees on bioethics and principles of transparent administration. This is perhaps more than was expected at the inception of the European project some sixty-five years ago. Nevertheless we are looking at an ecosystem of law, where we find offshoots of the Magna Carta on every branch.
Fundamental rights and freedom of speech
Globalization has led to increased mediatisation of non-state political violence, and shortening media cycles put more pressure on policy-makers to put forward a response after each event. This action-reaction cycle puts a new sort of pressure on fundamental rights. Elected representatives must do something, anything, in reaction to every terrorist act and must be seen doing it. Instruments on fundamental rights are caught up in the storm, alternatively erected as a protective barrier against any number of threats or prodded to adapt to what we are told is a profoundly changing global environment.
There is absolutely no doubt that their evolution should go on, with the continued involvement of the legal community and all members of society in general. The legal profession in particular has a key role to play in maintaining a spirit of debate and discussion, in addition to translating rights and freedoms in practice when working with the citizens and businesses they serve.
It is in view of this debate that the CCBE chose “Freedom of Speech” as the theme of European Lawyers’ Day 2015.
The event will take place on 10 December, in conjunction with World Human Rights Day. It is held as a national day throughout Europe that celebrates the rule of law and the legal profession’s intrinsic role in its defence, including lawyer-client confidentiality as well as the common values of lawyers and their contribution to the justice system.
In Europe, freedom of speech is one of the most prized values, but recent terrorist attacks show that the freedom to mock and question cannot be taken for granted.
Freedom of speech is a requirement to exercise a number of other freedoms: the free flow of ideas is necessary to communicate, correspond, learn, write, teach, analyse, compare, organise, share, study, and forge one’s own opinion about the world. It is the role of lawyers to defend those freedoms.
Unfortunately, lawyers continue to be harassed around the world for speaking up for their clients in courts and outside the courts; their rights must be protected for the benefit of all. Lawyers protect and promote the freedom of speech through their work for citizens, but their ability to undertake such work is under growing threat from restrictive government policies. It is our duty to work towards a legal and regulatory environment that allows our colleagues to remain the champions of freedom.
I hope that we can count you among the participants of European Lawyers’ Day on 10 December through the activities organised by the Bar of England and Wales, where we can contribute together to the permanent evolution of fundamental rights in an ever-changing world.