Scot in the European hot seat

Who saw that one coming? A Scots solicitor has attained the presidency of the body claiming to speak for Europe’s 1.2 million lawyers, for the very year in which negotiations over the UK’s exit from the European Union will be joined in earnest.

Not that the CCBE, the Council of Bars & Law Societies of Europe (the acronym derives from the French version), is limited in membership or interests to EU member states. And Ruthven Gemmell, a past President of the Law Society of Scotland who since 2014 has progressed through three levels of vice presidency prior to being confirmed last month as its 2017 President, does not regard himself as there to represent any national interest, in the face of this most unsettling event for the European legal order.

The third Scot in the CCBE’s 57-year history to reach the top post, but the first solicitor (David Edward QC in 1978-80 and Colin Tyre QC in 2007 went before him), Gemmell denies that he finds himself in a difficult position as a result of the referendum vote: “What I have said and reminded everyone of is, I’m not only there to represent the UK. To some extent, whatever happens in the UK will have to be dealt with, but I’m there to represent all the member bars of the CCBE and that’s what I will do.”

Certainly, a body representing legal professional associations from 45 different countries, as full members, associates (from countries in the queue to join the EU) or observers, has much apart from Brexit to concern itself with.

As for Brexit, while the CCBE has formed a task force to consider the implications, it needs a clearer picture of the post-Brexit landscape before it can do any meaningful work. Gemmell anticipates two main issues of concern: first, what will be the impact on the profession, one of the founding ideals of the CCBE being the free movement of lawyers, and secondly and probably more importantly, “What about the rights that lawyers have defended and worked for, for citizens, subjects? Where will they be in relation to the fundamental rights that they have? Bearing in mind, of course, Mrs May has said nothing about whether we are going to remain a member of the Council of Europe, within which the European Court of Human Rights enforces the Human Rights Convention.”

(The prospect of withdrawal from the Convention has been raised again since our interview, even if it is on the back burner pending the Brexit process.)

Independence at stake

If Brexit remains something of a sideshow for the CCBE meantime, there are other very serious issues facing lawyers across Europe at present, demanding its attention. For one thing, political interference in the rule of law in states such as Hungary and Poland is causing “enormous” concern. The CCBE is active in protesting to the relevant Ministries of Justice and others, bringing to bear as much influence as it can muster through its recognition by the European institutions as the voice of the profession.

At stake is nothing less than the independence of the legal profession, something that Gemmell refers to repeatedly as having to be defended. “We believe that you need an independent legal profession and the rule of law to have a democracy, and that’s why I say it’s quite galling for us in the UK to have all these criticisms of judges for simply upholding the rule of law,” he observes, referring to the reaction to the High Court’s decision in the article 50 litigation: threats to independence are not confined to other countries. “We might like to criticise certain countries as different to the UK, but there are concerns about a lot of European countries in relation to the legal profession.”

Perhaps most especially, however, in certain countries still outside the EU. In Albania, where the CCBE is supporting the bar’s efforts to emerge from decades of dictatorship and establish an independent legal system, “one of the obstacles is the attitude that some people still have: ‘Why should I pay a lawyer when I can pay the judge?’” In Ukraine, whose national bar association has just become a CCBE member, “it’s quite clear from everything they’ve told us that there has been, though they’re reforming it, corruption in the judiciary. And that debases everything, which is why there is so much emphasis, by the EU in particular, on training judges”. As for Turkey, “We have a human rights award every year, which has just been awarded to a number of Turkish lawyers, one of them posthumously, and half of those recipients weren’t even allowed to leave the country to come and see us: they are under house arrest for doing their job.”

Faster forward

But across the continent, Gemmell, and the CCBE collectively, also perceives a threat to the profession from within, in the form of IT, and lawyers’ reaction, or rather lack of reaction, to it. “We had a special conference about this in Paris and we had the past President of the International Association of Young Lawyers, whose conclusion was that the biggest threat to the legal profession in the future was lawyers themselves. Young lawyers are thinking that we are not innovative enough, not embracing technology quickly enough.” That covers Rocket Lawyer-type services, artificial intelligence, voice recognition and document technologies, online dispute resolution systems, making predictive judgments, and more.

Does he believe the criticism applies to the profession in the UK? “In some ways, yes. I think the trick is not to go the way of Kodak who used to corner the market in film. They had a patent for a digital camera, but thought ‘This will never catch on; people will want to get their prints and put them in a frame.’ And they went out of business. Yet they knew the technology was there. This has huge issues for the legal profession. The biggest one is how independent is the advice you get from artificial intelligence or a computer or whatever.”

In line with that last point, the CCBE’s own focus is on getting regulators to understand the issues raised. “It’s got to be made to work within the framework of what lawyers do in society. And that’s to uphold the rule of law, which means that you have to have an independent legal profession, which needs ethics, standards and training.

“You need to be able to maintain the important things that lawyers currently provide, in a technological sense. Lawyers have strict rules about conflict of interest, but how does a robot know about conflict of interest? You can replicate a huge amount of what people do, but can you replicate everything? To me, the answer is that lawyers should do everything they can that fits within those boundaries and try to make sure that anything else is not adversely affecting their clients.”

With online dispute resolution, for example, “How do I know that my dispute with e-Bay hasn’t been decided in an entirely different way to your dispute? It’s as simple as that, really. It could be the same faulty thing we bought.”

Related to that, he believes, are the effects of globalisation and the perceived need to modernise and adapt traditional professional structures. The CCBE has been in a long-running tussle with the European Commission over the latter’s consumerist agenda for reforming the legal services market – it featured in the interview with Colin Tyre in Journal, April 2007, 24 – with the CCBE attempting to resist the “one size fits all” mentality that fails to recognise the profession’s core principles.

“Whereas structures have changed and will continue to change, we must remind the relevant decision-makers of the consequences, often unintended, of changes which erode ethics and standards, threaten the independence and integrity of the legal profession and so diminish its standing and function,” Gemmell asserts.

Actions too

It would be wrong, however, to view the CCBE as merely a talking shop or ginger group for lawyers’ core values. Faced with the migrant crisis and the huge numbers of people turning up on Europe’s shores with little idea of their rights, it has rolled up its sleeves and, with the help in particular of the Greek and German lawyers’ associations, organised a scheme to encourage lawyer volunteers to spend a few weeks on the island of Lesvos, doing what they can to advise those in the refugee camps. Proud of this commitment (“Nobody else is doing that”), Gemmell lists this as one of the three issues that he particularly wants the CCBE to work on during his term.

The IT challenge is the second; the third is confidentiality of information. This relates both to the coming into force in 2018 of the GDPR (General Data Protection Regulation), which will affect everyone having data in Europe whether EU members or not, and to the ever-growing issue of state surveillance. Here, the CCBE is actively in litigation alongside national bars, scoring a notable success last July when it intervened on behalf of Dutch law firm Prakken d’Oliveira to persuade a court in The Hague that the country’s surveillance policy breached the fundamental right of a lawyer to communicate confidentially with a client.

These are big issues, but the CCBE also attempts to cover many sector-specific legal matters, generally those with a cross-border element. “We had a meeting with 23 items on it – family law, insurance, migration, anti-money laundering, mandatory disclosure of aggressive tax planning schemes, and so forth, so there was a lot to cover.” Gemmell is pushing forward a programme for change to help the organisation manage such agendas – training for committee chairs as well as Presidents and future Presidents, more focused agendas, timings for meetings, concentration of discussion on areas of disagreement. “These are all just simple procedural changes that I’ll introduce and I think it will be helpful.”

He even has ideas to pursue a name change for the CCBE. “It’s quite difficult to get people to understand what you are there for. We hived off our project work into a foundation and we called it the European Lawyers Foundation, in the English version. That’s a fairly clear example of a name that says what it does. I think that would be great. I’m not sure that people would agree to change it and I’m a bit reticent about organisations changing their names anyway, but perhaps the Council of European Bars would be another, or the European Lawyers Association.”

However, he recognises the prevalence of “CCBE” – it appears on every Law Society of Scotland smartcard, for one thing – and that the initials have certain ring, even if few people are quite sure what they stand for. “It’s something I’m going to try to change, but I’m there for a year and these things can take a bit longer.”

The name is also there in the CCBE code of conduct. Originally an idea of David Edward’s in 1980, Gemmell tells me that the first draft of the code was by former Society Vice President Lake Falconer, and the final version co-authored by former Council member Walter Semple. That took eight years to complete. But once these Scots get an idea...

Inside the CCBE

Created in 1960, the Council of Bars and Law Societies of Europe (CCBE) represents the professional bodies of 32 full member countries (those in the EU and the European Economic Area), and 13 further associate and observer countries.

Throughout its existence, it has advanced the views of European lawyers and defended the legal principles on which democracy and the rule of law are based. A particular feature of its work is its focus on European cross-border policies, and how they affect not only lawyers but the general public.

Recognised by the European institutions, it has regular contacts with the European Commission, Council and Parliament, liaises with the Court of Justice and the European Court of Human Rights, both of which have accepted it as intervener in appropriate cases, and also works with the Council of Europe.

National delegations vary in size – the UK has one of the largest, with representatives from the professional bodies in all three jurisdictions. Some national bars support others from states with fewer resources, to help them attend meetings.

In addition to the President, there is a First, Second and Third Vice President, with office holders normally moving up level by level over a four-year period. Ongoing work is carried out through a series of committees and working groups, shared between the office bearers, who then report back to the presidency team on their own committees.

Ruthven Gemmell has had presidential responsibility for International Legal Services (including TTIP and the Trade in Services Agreement); the Finance Committee (he also has an accountancy background), and Criminal Law, “which is [pause] interesting! Actually, it is interesting because it’s all about the European arrest warrant and similar issues, which I know most lawyers and a lot of Government people want to continue if we do leave the EU”.

He also looks after the PECO committee – “a French acronym for all the countries that are observer or associate members, FYR Macedonia, Albania, places like that, where they can come and talk about common problems that are somewhat different to the problems faced by the full member countries of the EU, for instance”.

www.ccbe.org