Busting legal myths in Europe

A very interesting report has just been published by a European body. For those longing for Brexit, don’t worry, this is not from the EU, but from the Council of Europe, where we remain a member. It is a comparative report from the Council of Europe’s commission for the efficiency of justice (CEPEJ) on the efficiency and quality of justice in Europe, including data from two of the three UK jurisdictions (England and Wales, and Scotland).

I believe that policy is too often made without having recourse to how other countries, similar to our own, solve particular problems. We sometimes live in a bubble of exceptionalism, some of which has driven the rationale for leaving the EU – that we, and in particular our legal system, are just too different from other countries for us to be a smooth fit in a union. What is interesting about this report is that it shows how often we are not so different after all.

It is disappointing – and maybe symptomatic - that the report has apparently not so far received any coverage in the UK. CEPEJ has kept a running compendium of press coverage across Europe. Although there has been discussion in multiple outlets in countries like France and Spain, there is as yet no record of any here.

The report is very careful to point out that comparisons between countries are very difficult. It mentions a few of the differences which make it so: for example, differences in judicial structures, court organisation, and the use of statistical tools for evaluation. It acknowledges that the particularities of some systems might prevent there from being any shared concepts at all, and stresses – in bold font - that comparing does not mean ranking.

Starting with juries, the report confirms that they are not unique to common law jurisdictions. Just under half of European countries use them. They remain an essential feature in western Europe, while the majority of countries in Central and Eastern Europe do not use them, some having abandoned the system during their democratic transition.

Moving to judges, we have a long tradition of using lay people in judicial roles. We are proud of it, and consider it one of our national strengths. But it is not just us: the use of lay judges is an essential feature not only of common law countries but also – again - others in Northern Europe. Overall, there is a downward trend in the number of countries using such judges.

Not surprisingly, the make-up of the judiciary, and whether it is composed partly of lay people, has a strong impact on budgets, particularly on salaries. So expenditure is much higher in countries which use only professional judges.

The growth in the number of women judges is a confirmed European trend, although – interestingly - it is less obvious in common law countries. There is still a glass ceiling on promotions to becoming head of a court. Seven jurisdictions have put in place an obligation of parity between male and female judges in the composition of ‘collegial courts’, where more than one judge sits.

On court fees, we find out that France, Luxembourg and Spain do not require litigants to pay a court tax or fee to start a court proceeding. In Spain, a recent Royal Decree (1/2015) exempted natural persons from fees, with only companies now under an obligation to pay them.

The revenues generated by court fees vary widely, from less than 1% to over 50% of national court budgets. In some countries, the revenue corresponds to more than half of the budget of the whole judicial system. For the majority of countries - in particular those where the courts receive the fee income from registers like our Companies House or Land Registry – the income covers a major part of court operating costs. If you can believe it, Austrian fees generate sums that far exceed the operating cost of the whole judicial system.

As for the number of lawyers in Europe, it is still increasing. The report puts the increase in several Central and Eastern Europe countries down to improvements in the rule of law. It also proposes that the widespread development of legal aid - which it admits to being uneven across jurisdictions - may also account for some of the increase. Neither reason applies to the increase in lawyers here, nor does the statement that the large number of lawyers in southern European countries may be due to their societies being more regulated in terms of legal acts.

No busy lawyer can be expected to read the whole report, which runs, with tables, to 341 pages. But I can recommend the summary report at just a few pages. Certainly all serious policy-makers in our field should have a copy handy for the solution of common problems.