The written advocacy of continental European lawyers makes for “boring” court proceedings, according to the President of the Supreme Court.
Giving the keynote address at a gathering of many of the world’s common law Bars, Lord Neuberger also said that well-paid advocates representing the rich had a responsibility to ensure access to justice for the poor.
Lord Neuberger was speaking at the World Bar Conference 2016 in Edinburgh on the weekend, to a gathering of advocates from England and Wales, Australia, Northern Ireland, New Zealand, Ireland, Scotland, South Africa, Namibia, Zimbabwe and Hong Kong.
Supporting legal systems which have a strong oral tradition of advocacy, the judge recalled visiting the European Court of Justice (ECJ) in Luxembourg and listening to submissions from advocates from, he thought, Spain and Poland, who were heard in silence by the court and to whom the judges barely spoke.
Asked for his opinion by ECJ judges later, he “made one or two points, basically suggesting that the hearings had been unexciting to the point of being soporifically leaden” and asked “whether they didn’t find it frustrating, indeed boring, to listen to advocates, without being able to ask them questions as they went along”.
The reaction, he recalled, was “a mixture of amusement and shock”.
He explained: “The amused judges thought that we British judges talked too much, and implied we should learn the virtue of silence. The shocked judges considered it to be judicial solecism for a judge to interrupt an advocate, and that we British judges should not be even contemplating it. Indeed, the Portuguese judge told me that, in his country, it was judicial misconduct for a judge to interrupt an advocate.”
However, according to Lord Neuberger, the judges were unhappy that continental advocates simply read their submissions and failed even to try and engage the court, agreeing that British advocates were “were consistently and easily the best oral makers of submissions in the Luxembourg court”.
Lord Neuberger said: “Most advocates in mainland Europe countries seem to me to be only really at home with written advocacy, whereas one of the most valuable features of our tradition is oral advocacy.”
Turning to the question of access to justice in England and Wales, he pointed out that while lawyers enjoyed privileges, so they had “concomitant responsibilities”. It was understandable that the most sought-after jobs at the bar were “at the higher-paid end”, but advocates, along with others in the legal profession, “have to do all they can to ensure that access to justice is not just a slogan but a reality”.
He highlighted that fact that while there was “a significant number of lawyers who do very well financially”, there were others, in particular in criminal, family and social welfare areas of law “who can scarcely make ends meet”.
Also at the conference, representatives of the member bars of the International Council of Advocates and Barristers renewed their commitment to the principles set out in the 2002 Edinburgh Declaration.
In a new 10-point declaration, they backed the rule of law and independence of lawyers and legal systems, pledging to support Bars where independence was under threat and to advance “the protection of human rights and access to justice”.
They affirmed: “In our respective legal systems the independent referral bars, the organised bodies of the profession of advocates and barristers, have a crucial role to play in defending the independence of the courts and in securing their efficient functioning, in affording effective access to justice and in promoting the rule of law.”