Euro elections and lawyers

Given that it is the biggest European story of the week, it would be odd not to comment on the recent election results. It is not, though, my job to give a general response - you can read a daily newspaper for that - but rather to reflect on what it means for lawyers.

My most basic response is to say that the European election has resolved nothing. Of course, it has been fun for the Eurosceptics to give the EU a kicking through voting UKIP. But, despite some huge national upsets (France is another one), nothing much has changed in the overall composition of the European Parliament.

In broad terms, the main Conservative, Liberal, Socialist and Green groupings have lost around 100 MEPs, and those 100 have now gone to the far-left, far-right and pure-Eurosceptic groupings. But out of a total of 751, the mainstream - and largely pro-European - parties still make up the great majority of MEPs. The displaced 100 will not form a cohesive whole, either (witness Nigel Farage instantly distancing himself from the French National Front).

More importantly, the serious issues have not gone away. I would say that the biggest lawyers’ issue that the EU is facing at present is data protection in its many manifestations: the general law on data protection (the new directive will have to be taken up again by the new parliament); the consequences of mass government surveillance; the necessary curbs on the activities of the internet giants (for instance, the European Court of Justice decision on the right to be forgotten by Google); and how to make cloud computing more secure.

Doubtless, there are others. 

Lawyers have more than a general interest in these various manifestations because, first, we are daily dealers in client data, and, second, we are subject by our ethical rules to keep client data confidential. Data protection has become one of the principal issues facing the legal profession world-wide.

You might say: typical, this is just the kind of issue which should be resolved at national level, why is the EU butting in? And I would answer: this is the classic case for action at EU level, because nation states are not able on their own to deal with the massive flows of data, and the threats to them from, say, the internet giants and from foreign governments. Do you believe that Google or the Chinese government prefers the UK to take action on its own, or prefers the EU to act?

I think we know that a group of nations acting in concert to protect basic rights is always going to be more effective, particularly where borderlessness has become a fact of life.

The question to ask the new anti-EU parties - in our case, UKIP - is how they will deal with this issue. As I have said, withdrawing from the EU, or taking blocking action to prevent all future EU legislation on any subject, does not resolve the complex problems surrounding data protection, but leaves them unresolved. You might say: We should form a specific alliance or sign an international treaty on data protection, there is no need to join the EU for that.

And I would answer: Then we will have to form similar alliances or sign similar treaties on climate change, energy security, terrorism, cross-border crime and all the other issues which a nation state can no longer face on its own – and we have an existing alliance or treaty for that already: it’s called the EU.

Data protection is not the only issue for lawyers, just the most important. Maybe the second most important is the opening of borders. The EU is in the middle of negotiating a free-trade agreement with the US (the Transatlantic Trade and Investment Partnership, or TTIP). It is controversial, with some consumer and green groups opposed. For English solicitors, free trade has proved a huge commercial boon, with City law firms opening offices all over the world.

The outcome of the TTIP, with the benefit of easier practice rights in the US, is important. Once again, an individual European nation state would not be able to achieve the kind of negotiating clout to open markets that the EU can achieve on behalf of all of us. Will withdrawal from the EU, or blocking progress on the TTIP, help or harm solicitors in our trade interests?

I know that immigration played a key role in the elections, with people complaining about the consequences on their daily lives. That has to be dealt with. But what also has to be put into the balance is that the free movement provisions of the EU treaty have benefited English solicitors enormously, by removing the main barriers to their being able to establish branches all over the EU. This is tied in to the point about trade above, and it is not in our interests to have the rules reversed.

Overall, I don’t predict an earthquake ahead, just hard work on complex trans-European topics.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs