Lawyers and ‘identity’ cards

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, available at
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/821):
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: http://www.ecba.org/cms/index.php?option=com_content&task=view&id=236&Itemid=101