Rule of law, human rights and what it is to be a lawyer

By Emma Mitcham, Chair, International Relations Sub-Committee


I found myself in an unseasonably arid Warsaw in mid-September for the intermediate meeting of the Federation des Barreaux d’Europe (FBE). Given the current issues with the erosion of judicial independence in Poland, it was cruelly ironic to be in that city 86% of which was destroyed by the Nazis and the Red Army in 1944. A city where the struggle for independence was waged by Polish insurgents and the civilians embroiled in it. That same quest being quelled by pillage and mass murder. But as the phoenix that lived in the desert for 500 years and consumed itself by fire, so too did Warsaw rise again. Renewed from its ashes.


After the Second World war, the human rights mandate was given to the Council of Europe with the Convention on Human Rights; the development of the human rights monitoring process and eventually, the European Court of Human Rights. The FBE consists of 250-member bars from countries who are members states of the Council of Europe and which represents some 800,000 lawyers. The general and intermediate congresses may be the FBE’s showcase, but the nitty gritty of the FBE happens in its commissions. It happens by e-mail; by Skype and by meetings between the congresses. There are thirteen commissions in the FBE and they range from arbitration, ethics and new technologies to the future of the legal profession. Being involved and taking a collaborative approach means that we have a unique opportunity to cross pollinate ideas across jurisdictions. DASLS is one of only four English law societies who benefit from contributing in this way.


I sit on the Human Rights commission and these are testing times when the rule of law is being fundamentally challenged.  The rule of law may seem an ambiguous concept consigned to the yellowing pages of an antique textbook, but the tragedy is that it can only be understood by the consequences of failing to uphold it and worrying trends are appearing across countries not too far from ours.  


In Romania, the rule of law of law is under just as much threat now as nearly thirty years ago after the demise of the Ceausescu regime. Collusion between the secret services and judiciary; blackmailing of judges as well as mass surveillance of its citizens being some of the cases in point. Hungary has descended into authoritarianism with the commanding party in parliament controlling 90% of the media. Like Poland (and similarly facing EU sanctions), Hungary’s constitutional propriety is in question. The independence of the judiciary has been curbed by forcing many judges into retirement and limitations have been placed on the constitutional courts’ ability to hear reviews and complaints.  In Serbia, lawyers have been attacked and murdered and, in Turkey, concern has been renewed about the continued arbitrary arrest, detention and prosecution of lawyers, judges and journalists. The general assembly of the FBE passed resolutions on all these issues.


DASLS contribution was by way of a resolution about women’s rights activists in Saudi Arabia. The modernising Crown Prince of the petrostate may have overturned a decade's long edict banning women from driving, but they are still subject to a myriad of restrictions.  Our resolution highlighted the FBE’s grave concern about Saudi’s use of anti-terror laws to punish women’s rights defenders in an unrelenting crackdown on dissent. The detention and possible execution of the Saudi suffragettes is clearly incompatible with international standards.  Saudi may be a long way from Devon and Somerset, but given that Exeter University has about seventy Saudi students (some of whom are studying law) suddenly the issue becomes closer to home.


Such was the volume of resolutions passed at the intermediate congress in September across the commissions vis-à-vis human rights that it was unanimously agreed that this demanded an FBE working group to look at ways of challenging these violations by national and international institutions and authorities. It is important to try to act rather than simply to respond to challenging issues with passionate rhetoric. Participation in working groups can be a crucial tool in our efforts to defend human rights and uphold the primacy of the rule of law. It is only in being visible that can change be effected. As lawyers, we have a duty to do whatever is possible and not turn our backs. We should be internationally outward looking rather than Little England facing for freedom can turn on a sixpence. No one expects a life where one is shielded from conflict; and nor do those who try and uphold the tenuous concept of human rights expect to be self-appointed saviours. On occasion, however, matters need to be pushed onto an “agenda” so that consciousness and profile can be raised because the international legal community has reached a worrying crossroads.


Quite distinct from the duties we have to our clients; to manage that burgeoning case load; to record and bill our time is something that eclipses the understanding of what it is to be a lawyer. It is more than someone who is qualified to advise people about the law and then represent them accordingly. Being a lawyer is about being imbued with an ethic of fairness and justice. It is about being responsible.  And nowhere is this more enshrined than in the core principles of the FBE.

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