ID Cards For All Lawyers
The national bars and law societies of the member States of the
European Union, the three members of the European Economic Area
(Norway, Liechtenstein and Iceland) and Switzerland are members of
the Council of Bars and Law Societies of Europe (CCBE). Bars and
law societies from other European countries are associate members
(Council of Europe countries in official negotiations for accession
to the European Union) or observer members (other Council of Europe
countries).
The CCBE develops policies in response to current issues through a
combination of specialist committees, the Standing Committee,
Plenary Sessions, the presidency and the secretariat. Until 2008,
the specialist IT law committee did not have a representative of
the three bars and three law societies comprising the United
Kingdom, but the first representative was agreed in 2008. This
article is to bring the reader up-to-date on to an important
development on the current agenda that will affect many lawyers in
the United Kingdom.
Identity cards
The CCBE began to issue an identity card in 1978. The card has
proved to be very useful for lawyers that need to obtain access to
courts and institutions outside their own jurisdiction. For
instance, the European Court of Justice and Court of First Instance
recognize the card. Although the card is produced by the CCBE, the
national bar or law society issues the card in the name of the
CCBE. The national bar or law society carries out the verification
procedure to ensure that the applicant is a lawyer currently
authorized and registered with it. Until recently, the card was in
paper format, but more recently, a plastic version has become
available.
Although identity cards tend not to be used in the United Kingdom,
nevertheless, certain categories of lawyer, namely those with a
criminal practice, tend to need to produce evidence of identity to
gain entry to prisons to visit their clients. At present a passport
suffices, but a passport is only a travel document, and to replace
it with an 'identity' card may prove to be very useful in the
future - leaving the passport in relative safety at home, free from
loss. There are also plans to incorporate a digital signature on
the card, partly because a number of bars and law societies require
the use of an identity card and the use of secure means of sending
and receiving e-mail. For instance, the Spanish bar has introduced
such an identity card and the Law Society of Scotland will also be
doing so shortly.
The current view of the IT Panel of the Bar of England and Wales
is to agree that the continued use of the identity card may be
beneficial to some lawyers, although it should not be compulsory.
In addition, the inclusion of a digital signature, whilst of
benefit to some lawyers in Europe, may not be necessary in England
and Wales, although that should not preclude individual lawyers
from opting in to have a digital signature. However, it is not
certain whether a barrister in England and Wales will be able to
have a digital signature included on a CCBE identity card issued by
the Bar. Much will depend on how the infrastructure of the digital
signature is developed, and whether the Bar may be required to be a
Certification Authority. This is for the future, because the
structure and procurement of the system have yet to be
agreed.
eJustice project
A further complication to the introduction of an identity card is
the development of the eJustice project. The EU has recently
increased the pressure to implement the eJustice project. In brief,
the project covers the following (taken from the
Press Release):
The objectives of e-Justice, which encompass both criminal and
civil justice, are broadly the following:
1. The creation of a European portal designed to facilitate access
to justice by citizens and businesses across Europe. It will
include relevant and updated information on the rights of
defendants and victims in criminal proceedings and on the remedies
available before the courts of another Member State in the event of
cross-border disputes. To make it possible to exercise those rights
in practice, the portal will also provide guidance to find the
competent court or tribunal in the relevant country. Furthermore,
the portal may allow access to certain on-line procedures, already
foreseen in existing EU regulations, such as debt recovery action
for small claims.
2. The reinforcement of judicial co-operation, on the basis of
existing legal instruments. An area of major concern to the
Commission will be the interconnection of Criminal Record
Databases. This ongoing project allows judges and enforcement
agencies across the EU to take account of defendants' past criminal
convictions. The Commission also considers other actions,
concerning exchanges of information between legal practitioners
(for which a specially secured network will have to be devised),
enhanced recourse to videoconference (so far, little used in
cross-border proceedings) and innovative translation tools, such as
automatic translation, dynamic forms and a European databases of
legal translators and interpreters.
For a reason that is not entirely clear, the IT
Committee of the CCBE have had a major role in discussing the
technical issues relating to the implementation of the eJustice
project, and there are two special working groups on e-Justice (the
first joint meeting was held on 26 March 2009, and the next one
will be held on 3 June 2009):
The Special working group for a European Lawyers Data
Base
The Special working group to implement a CCBE platform for the
validation of electronic signatures
It is not entirely clear what effect, if any, these
working groups will have on the project, because the CCBE has no
powers to require any member of the CCBE to take up an identity
card.
Further information about the e-Justice project can be found in
the following documents:
Notice from the Council: Multi-Annual European
e-Justice Action Plan 2009-2013 dated 31 March 2009 (2009/C 75/01)
C 75/12 EN Official Journal of the European Union 31.3.2009
European Parliament resolution of 18 December 2008 with
recommendations to the Commission on e-Justice
(2008/2125(INI))
Communication from the Commission to the Council, the European
Parliament and the European Economic and Social Committee: European
Commission Communication Towards A European E-Justice Strategy,
30.5.2008 COM(2008)329 final SEC(2008)1947 SEC(2008)1944
The eJustice project is being carefully monitored by
the Law Societies and Bars of the UK, and although there is some
disagreement between the various Law Societies and Bar about the
compulsory introduction of identity cards and digital signatures,
nevertheless there is a great deal of agreement about the futility
of some of the grandiose schemes put forward by the eJustice
project.
Practitioners specializing in criminal matters will do well to
read what the comments of the
European Criminal Bar Association.
© Stephen Mason, 2009