EUROPEAN COMMUNITIES (SERVICES OF LAWYERS) ORDER 1978 (Hansard, 5 December 1978)

§ The LORD CHANCELLOR

My Lords, I beg to move approval of the draft European Communities (Services of Lawyers) Order 1978, which has been laid in draft before Parliament for Affirmative Resolution by each House under Section 2(2) of the European Communities Act 1972, and has already been approved in another place. The purpose of the draft order is to implement the European Communities Council Directive of 22nd March 1977 to facilitate the effective exercise by lawyers of freedom to provide services. Some of your Lordships may already be familiar with the Directive, which was considered in draft by the Select Committee on European Communities, under the chairmanship of the noble and learned Lord, Lord Diplock, in its Eleventh Report in the 1975–1976 Session. The background to the Directive is most helpfully explained in that report. The Directive is part of the Council's programme of liberalising the services of lawyers; that is to say, enabling freer 20 interchange of professional legal services within the Community. It is a goal to which member States are committed under Article 59 of the EEC Treaty, and the United Kingdom Government were actively involved in its formulation.

Broadly speaking, the Directive enables lawyers from Community States to provide, on a temporary basis, services in each other's territories, on the same conditions as apply to national lawyers of those States. The Directive is not concerned with establishment; that is to say, with the right to set up a permanent practice in another member State. Its principal benefit for us lies in the increased opportunities it opens up for those of our own lawyers by providing services in other member States of the Community. The corollary of this is that we should give effect to it so as to enable certain Community lawyers—roughly, those corresponding to our own advocates, barristers and solicitors—to provide services here. Reciprocity is essential. To achieve it we must modify those provisions of our own laws which reserve the provision of certain services to United Kingdom lawyers. These services mainly concern the representation of clients in legal proceedings, in particular appearing before the courts, and in preparing certain legal documents. They are reserved in this country by a miscellany of enactments and rules of law and practice which have evolved over the years. The final date for implementation is 26th March 1979, and the method chosen by the Government to modify these provisions is by means of an Order in Council covering all three jurisdictions of the United Kingdom—that is to say, England and Wales, Scotland and Northern Ireland—in accordance with the recommendation of the Select Committee.

The extent to which we are required to modify our law is laid down by the Directive. A number of reservations and qualifications are permitted to member States. The draft order now before your Lordships faithfully implements the Directive, while at the same time taking full advantage of those reservations and qualifications. The nub of it is to be found in Articles 5 to 10, which enable EEC lawyers to represent clients in legal proceedings in the United Kingdom, and to draw up certain non-contentious legal documents. Thus, under Article 5 of 21 the draft order it is provided that no enactment, rule of law, or practice is to prevent an EEC lawyer from providing services in proceedings which could be provided by an advocate, barrister or solicitor by reason only that he is not an advocate, barrister or solicitor. In general terms, this would enable EEC lawyers to address our courts, issue process, prosecute and defend actions.

This right is subject, however, to a number of important qualifications to which I should draw attention. First, by virtue of the proviso in Article 5, an EEC lawyer providing services must be instructed and act in conjunction with a United Kingdom lawyer entitled to practise before the court and to provide the service in question. This reservation is permitted by Article 5 of the Directive and is designed to take account of the differences in court procedures between the various member States and a visiting lawyer's unfamiliarity with them.

Secondly, detailed provisions are made by Article 6 so as to place EEC lawyers providing services on an equal footing with United Kingdom lawyers. This is envisaged by Article 4 of the Directive, and will in particular ensure that an EEC lawyer, like a United Kingdom lawyer, cannot provide both the services of an advocate or barrister and a solicitor in the same or related proceedings. Similarly, Article 7 places EEC lawyers in salaried employment on the same footing as salaried United Kingdom lawyers.

Article 8 enables EEC lawyers to draw up for remuneration certain non-contentious legal documents, but this is subject to the provision in Article 9 by which EEC lawyers will not be entitled to draw up documents creating or transferring interests in land, or obtaining title to administer deceased persons' estates. This reservation is permitted by Article 1.1 of the Directive in view of the fact that not all the lawyers to whom the Directive applies are entitled to draw up such documents in their own member States, and it therefore seems right that these services should continue to be reserved to United Kingdom lawyers.

Article 10 enables an EEC lawyer to provide services by way of legal advice and assistance and legal aid, and makes consequential modifications to the relevant 22 United Kingdom legislation. This provision will, of course, be subject to the usual controls, and in particular, legal aid will not extend to the employment of an EEC lawyer unless the court, or a certifying committee of British lawyers, consider it necessary.

The only other articles to which I think I need draw attention are Articles 12 to 17, which contain important provisions relating to the verification of the status of EEC lawyers, and their disciplinary control. Articles 12 to 14 enable our own professional organisations, and our courts, to require EEC lawyers seeking to provide services to identify themselves. I understand that the Consultative Committee of the Bars and Law Societies of the European Community have recently recommended a form of professional identity card for use by lawyers in the Community, and this should be of assistance to the professional organisations and the courts.

Articles 15 to 17 provide the machinery for dealing with professional misconduct by EEC lawyers providing services, should the need for it ever arise, which I hope will be a very rare event indeed. Your Lordships will observe that at this point the draft order does not seek to define professional misconduct for this purpose. Rules of professional conduct do not form part of the general law of this country, and are applied in the first instance by our domestic disciplinary tribunals. The best course, therefore, and one with which the United Kingdom professional bodies are in agreement, is for the draft order to confer jurisdiction on the relevant authorities over EEC lawyers, which is, done by Article 15, and to leave the applicable rules to be determined by them in accordance with the framework laid down in Article 4 of the Directive.

This arrangement enables the draft order to be confined to matters which clearly affect the general law, and avoids the need to encumber it with provisions which would not in any event fit neatly into United Kingdom legislation. That method of approach fits in appropriately with the Directive itself, which contemplates that, while the basic rules of professional conduct are to be found in the text of the Directive, member States will make their own detailed provisions for enabling competent authorities 23 to take appropriate action in the event of a breach of the rules. These detailed provisions are made by Articles 16 and 17 of the order, and I am satisfied that they will leave our professional organisations with enough latitude and flexibility in dealing with cases of professional misconduct.

My Lords, the draft order is framed to come into effect on St. David's Day, the 1st March, 1979—that is, a few weeks before the final date for implementation—but I assure the House that there is no special significance in choosing Wales's Saint's day for the purposes of giving effect to the order, despite the fact that so many lawyers are produced by the Principality. This will leave sufficient time for the necessary publicity to be given to the order. I hope your Lordships will support the draft order, representing, as I submit it does, an important step in the development of the Treaty provisions on freedom of services and our contribution to the implementation of a Directive which confers not insignificant benefits on those of our own lawyers providing services in other Community States. My Lords, I beg to move.

§ Baroness ELLES

My Lords, the House will wish me to thank the noble and learned Lord the Lord Chancellor for explaining the draft order so fully and for spelling out its provisions as they may affect practising lawyers in this country. He has rightly emphasised that the order is concerned not with the right of establishment of a lawyer of a European Community member State in another member State, but is confined to the provision of services on a non-permanent basis. I am grateful to him for emphasising this point, because obviously the question of establishment is a much more complex and difficult matter, and I understand will be considered later on by the Community as a whole.

The legal basis for this draft order, as the noble and learned Lord pointed out, is Article 59 of the EEC Treaty, but it is also based on Article 3 of the Treaty, 24 which provides for the abolition as between member States of obstacles to freedom of services. The noble and learned Lord will recall the case of (I think it was) Van Binsberg in 1974, which confirmed that residence and nationality were no longer relevant to the right of a Community lawyer to practice in another member State. Sensibly, the Commission took the view that mutual recognition of qualifications was not practicable, and they have accepted that the status of "lawyer" as defined in each of the member States is sufficient.

It may be of interest to recall that when the question of establishment in the case of doctors was considered Professor Dahendorf called together representatives from all the member States, and the one key factor which was common to all the doctors present was that their one concern was that the high standard of the profession in their own country might be impaired by the intrusion of a doctor from another country. This was the one key concern which they all shared. I am sure that this concern is one which lawyers from all the nine member States also felt, and that it will undoubtedly have been removed by the discussion and the confidence which this draft Directive has produced.

The two provisos placed on an EEC lawyer's freedom to practise in another member State also seem reasonable and sensible: first, that he should observe the professional standards of both his own country and the host country; and, secondly, that he should act in conjunction with a lawyer of the host State entitled to practise before the court in question. I think noble Lords will agree that these appear to provide adequate safeguards to look after the interests of the lay client in the country concerned. As Sir Derek Walker-Smith said in another place, it may well be that as a result of this Directive a standard code of professional conduct may eventually be drawn up to apply to all the 125,000 lawyers practising within the European Community.

Certainly from these Benches I should like to pay tribute, and express my gratitude, to Sir Derek for the leading part he has played, as chairman of the Legal Committee of the European Parliament, in amending the original draft Directive, which was unacceptable, and in making it more workable. He has made it conform 25 with the practical realities of the variations in the legal profession throughout the Community, as well as the variations in the legal systems themselves. As a result of the co-operation and concerted efforts of all concerned, I understand that the Faculty of Advocates, the Law Society, the Senate of the Inns of Court and the Bar Council are satisfied with the terms of the Directive as adopted in March 1977 and as it will come into force in March 1979. I think this is a great achievement, and all those concerned are to be congratulated.

My Lords, it may not be that many lawyers will avail themselves of the opportunity to appear in a British court. It is less likely if they have to pay United Kingdom rates of tax on their earnings, and are subject to exchange control regulations. This is a matter where perhaps a little harmonisation would indeed be beneficial, if we were to follow the rates of tax prevailing in other member States. But this Directive will certainly be of benefit to those engaged in commerce or trade in the European Community, and who need to litigate in the courts of a member State other than their own. Further, it will now be possible for a client's local lawyer to represent his interests in another court of another member State. I think this is of undoubted advantage.

I should like to draw the attention of your Lordships to an article which appeared in the Financial Times on 23rd October 1978—a few weeks ago—which referred to a ceremony taking place in Brussels, when the Commission issued a passport to lawyers as a kind of professional identity card. I think this is the first time this has been done, and it enables a lawyer to present himself in another country without having to give any further evidence of registration or qualification. I think it is a practical and sensible step to take.

So, my Lords, we feel that this draft Directive is a small improvement in the field of co-operation based on a pragmatic approach, and one which may be, and hopefully will be, of benefit to the citizens of the European Community. We on these Benches should like to support the draft order before your Lordships' House.