The human right to be a lawyer

There has been another case in the European courts concerning the bars and the practice of law. This is a thriving sub-set of European jurisprudence, which may not be surprising given that lawyers must have the strongest tendency of all groups of citizens to settle disputes with their professional organisations in the courts.

The decision is unusual because it arose in the European Court of Human Rights in Strasbourg, whereas most other lawyer-bar issues are settled in the Court of Justice of the European Union in Luxembourg. Try to restrain your inner Nigel Farage as you read about it. Since Lord Neuberger gave a speech in the last few days saying that British people were uniquely resistant to being told what to do by the European courts, maybe you should resist your inner Neuberger.

He argued that ‘the need to lose a degree of autonomy for the sake of increasing the prospects of peace in Europe resonates far less strongly in the UK than on mainland Europe’, apparently because we have gone for 950 years without a foreign occupation. Really, Lord Neuberger? I think the ghastly British death toll in the 20^th century’s wars might give us reason to lose some autonomy for the sake of peace in Europe.

Anyway, the case to excite you is called Mateescu v Romania, Application no. 1944/10, and was decided last month. The facts are that a Romanian doctor decided late in life that he wanted to be a lawyer as well. He said he wished to use his medical expertise to provide legal advice in medical malpractice cases. In the UK, this would not cause a problem because of our minimal rules on incompatible occupations, but in Romania there is a list of occupations deemed incompatible with being a lawyer.

Although doctors were not specifically on that list, the Romanian bar felt that the general import of the rules forbade one person following two liberal professions, on the basis that each demanded 100% attention. The case wound its way through the Romanian courts, being decided this way and that, and ended up being referred by the doctor to the European Court of Human Rights.

Although he relied on another article, the court founded its decision on Article 8 of the convention on human rights, which states that everyone has the right to respect for private and family life, home and correspondence. In particular, the court examined the second paragraph, which forbids interference by a public authority in these rights, except in accordance with the law and (to put it crudely and briefly) where necessary for sound public reasons. The court decided that the public authorities here were in the wrong, and that there was a breach of Article 8.

Although some of the case depends on circumstances specific to Romania, there is a general principle in the decision that Article 8 guarantees someone the human right to follow a profession of choice, including that of lawyer, within the criteria outlined in the Article. Up until now, the interpretation of bar rules might have been thought to be more a question of national and EU law than human rights. That is why this case has resonance for all bars in Europe, which must ensure that they comply with Article 8 in their conditions for access.

It is strange to think that someone has a human right to be a lawyer. I can see why Nigel Farage and Lord Neuberger – I apologise for bracketing them together – might think that this is a decision too far, and that the issue of incompatible occupations should be decided at national level in accordance with national law and culture.

Yet I can also see why it is good, so good that it outweighs their argument, for the UK to be part of a supranational court deciding human rights issues in accordance with a supranational convention where Europe-wide standards are set. No country has a monopoly of wisdom. There is nothing in the Mateescu outcome which is outrageous. And yet I confess that a small part of me is glad that the Farage-Neuberger faction (sorry again) is making a fuss, to ensure that the Strasbourg Court is always conscious of its democratic constituencies.

There is a very entertaining book to be written about the European case law applying to lawyers and the bars. A good deal of it can be found here, although it deals only with the decisions of the Luxembourg courts. Most of the Luxembourg decisions relate to the free movement of lawyers. For those who deal in this specialised area, the names of some of the cases - Klopp! Gullung! Gebhard! - are like an opera buff reciting the memorable arias of Maria Callas. But there are also categories for ‘competition’, ‘professional secrecy’, ‘money laundering’ and ‘training’.

Now I believe I have the human right to end this piece, and have a piece of cake.

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