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4 October 2013
'The English Bar in Europe' has rather anachronistic undertones of the 'Channel in fog, continent cut off' variety. It is understandable if to the outsider, the English Bar (still clinging on to its traditions of wigs and compulsory dinners and hidden away in the ivory towers of the inns), appears a peculiarly domestic institution, unsuited - unlike multinational solicitors' firms - to forays across the Channel. But from an insider's perspective, what is striking is the extent to which the Bar now considers itself part of Europe. Barristers engage with the rest of Europe all the time and in an increasing variety of ways.
Litigating European law
This perception is not one-sided. During the time I spent working at the European Court of Justice as Judge Edward's referendaire, two matters were commented upon frequently by various colleagues from other member states.
First was the adeptness and seriousness with which UK courts and lawyers handle European law, something that many find unexpected given the Euro scepticism of the UK press. Preliminary references from the English courts are generally of a very high quality and the English courts have a good record of giving effect to European Court rulings.
Second was the skill with which members of the English Bar generally present their cases before the court. Several advocates general and judges, as well as their referendaires, have remarked informally that they breathe a sigh of relief when the UK Government intervenes in a case. Even if the court disagrees with them, the UK's observations are often used as a reliable means of swiftly reading into a case and identifying the salient issues.
Similarly, the oral tradition of the English Bar confers advantages on its members at the stage of the hearing before the court. Although we are used to judges putting us on the spot with questions, the same is not true of lawyers practising in many civil law systems. At the first oral hearing I attended upon arriving at the court, a question was asked repeatedly of an advocate representing the Government of another member state. After ducking it several times, he finally replied that he would rather not answer. It transpired that this was not unusual; little surprise that advocates from the UK and Ireland are often responsible for a livelier, more focused hearing.
Representing UK clients at hearings before the European Court of Justice (ECJ), the European Commission (EC) and the European Court of Human Rights (ECHR) is the most obvious way in which barristers engage with 'Europe'. It is easy to overlook the fact that the everyday work of many at the English Bar is infused with EU law and the law of the ECHR. This is not restricted to areas such as judicial review and competition law. Employment, immigration and planning law are among the many other areas of work in which domestic law and policy has increasingly given way to regulation at EU level and in which practitioners have necessarily acquired the particular skills needed to handle European law.
Working for foreign clients
Less well known is the fact that members of the English Bar have often been called upon to represent clients from other European states in proceedings before the European courts in Luxembourg and in Strasbourg.
Stuart Isaacs QC recently represented a French client on a reference from the French courts to the ECJ. Peter Duffy QC and I represented the Greek government before the EC in Strasbourg in the action brought against it by the former King of Greece. After Peter's tragic death, the Greek government turned to two other members of the English Bar: David Pannick QC and Dinah Rose. David Vaughan QC is something of a hero in Cyprus, given his victories for the Cyprus government in the Anastasiou cases concerning exports of fruit from the occupied part of the island. Some countries have rock stars...
Opportunities to work for foreign clients will increase once the next wave of applicant states join the EU in 2004. Barristers can take advantage of the direct access rule, which allows them to accept instructions directly from clients based abroad, and are well-placed to compete for that work. Brick Court Chambers has already taken steps to do so by establishing close links with Polish (Wardynski & Partners), Slovakian (Cechova Rakovsky) and Czech (KociaSolc Balastik) law firms.
Cooperation with lawyers in other member states
The establishment of links with lawyers in the applicant states has not been motivated by self-interest alone, as demonstrated by the time and effort devoted by many barristers to the work of the Slynn Foundation, which runs training programmes for lawyers and judges in those states to prepare them for accession.
Such training programmes were first implemented for the states that acceded in 1995. Their effectiveness is demon-strated by the speed with which the courts of those three states adapted to EC law compared with the courts of the states that had joined earlier. In the first five years of their membership, the courts of Austria, Finland and Sweden made 115, 15 and 28 references respectively. None of their predecessors (save for the far more populous Spain, with 11) had even broken into double figures during the five years after their accession.
There are other means of creating and fostering links with lawyers in the rest of Europe. The Council of the Bars and Law Societies of the European Union (CCBE) has been instrumental in dismantling the barriers that make it difficult for lawyers to work in other member states. This has led to the adoption of the Lawyers Establishment Directive. In March 2001, the European Circuit of the Bar of England and Wales was created. Its first Leader is David Vaughan QC.
More than 5 per cent of the English Bar (including members who also work in chambers) are members of other European bars or are employed by companies, governments and international institutions in other European states. The European Circuit is designed to provide a forum for those barristers, as well as for barristers based in England who are involved in European and international work. It serves as a point of contact in states where members of the English Bar may wish to practise; and by organising events across Europe it may assist in publicising the services of barristers.
The Bar in Europe
Barristers can provide a valuable service that is particularly well-suited to the growing amount of litigation conducted before the expanding number of international bodies. The World Trade Organisation in Geneva, the International Criminal Tribunal for the Former Yugoslavia (where Geoffrey Nice QC was senior trial attorney) in The Hague, the Court of Arbitration for Sport (where Michael Beloff QC acts as arbitrator) in Geneva - just some of the examples of forums in which barristers can and do ply their trade.
So, the time has come for misconceptions to be cast aside. The modern English Bar's place at the heart of Europe is undoubted. The Channel fog - if ever there was one - has lifted.
Marie Demetriou is a barrister at Brick Court Chambers