Ian Forrester QC LLD, born in Glasgow and the United Kingdom's last judge at the General Court of the European Union before Brexit, has practised law in New York, London and Brussels.  

He arrived in Brussels in 1973 as one of the first generation of UK lawyers as the UK joined the European Union.

As an advocate he participated in many leading cases concerning EU law such as Bosman, Bullock (Distillers), GlaxoSmithKline, Servier, Pfizer, Magill, IMS Health and Microsoft.

In this episode with Baines Law he compares and contrasts the different approaches of the EU and UK Courts, the reasons in the EU for the preference for a largely written as compared with oral procedure in the UK, the time permitted for oral advocacy in the EU and the approach to questioning of the advocates.

He gives a deeper insight into the way decisions are reached and talks about the merits, or otherwise, of delivering a unanimous judgment in all cases rather than permitting minority opinions.

And he has a word to say, too, about the difficulties which have emerged and those who have been forgotten by Britain's hasty exit from the Union.

Barry Baines:

Welcome. This is Barry Baines from Baines Law, a legal miscellany where we regularly podcast about cases and legal issues, as well as talking to professionals and others who have experience of our legal system.

Today's guest was appointed a judge of the General Court of the European Union in Luxembourg, after a first career as a practitioner and leading counsel in the field of European Union law. He practised most especially in competition law, trade law, customs, internal market rules, intellectual property, and constitutional rights in a variety of sectors include including broadcasting, chemicals, information technology, pharmaceuticals, software, and sport. Quite apart from the very many cases he sat upon as a judge, as an advocate, he argued in many contests, which have become leading cases including the football transfer case of Bosman, McGill copyright licensing, Microsoft computer servers, IMS compulsory licensing, GlaxoSmithKline parallel trading and a host of others.

Ian, thanks very much for being with us today. You have vast experience as a judge and an advocate in the General Court of the EU and the Court of Justice and I wonder if you might compare and contrast the different approaches of the courts with the UK courts in general. What I have in mind is that here the appeal courts rely primarily on oral presentation, whereas in the European courts, they tend to have extensive written representations first. Do you have anything to say about that?

Ian Forrester QC:

Yes, indeed. You need to remember that the court when I was on it was the court of 28 countries with 24 official languages and one working language. If you think about it, a working language is necessary when pleadings can come in in Lithuanian or Portuguese, Greek or English and so French is the working language of the court. And a slight exaggeration, nothing happens until the texts have been translated into French and the discussions between the judges are pretty much all in French. Sometimes a member who doesn't feel comfortable will say, "Can I switch to English?" And pretty much always that doesn't pose a problem. But if you reflect on it, that is one cause of the preference of the court to use written texts because oral presentation through an interpreter necessarily loses something.

So that's one explanation of a major difference between the UK courts and the court in Luxembourg. The court in Strasbourg, the Human Rights Court, is a bilingual court, which operates in English and in French, but in Luxembourg for the moment, I suppose, one day that might change and there have been suggestions that English could be added as an optional working language for English language cases in the general court, but that is some way in the future. So that's the first reason.

The second is that in the continental tradition indeed written pleadings are nearly always more important than oral advocacy. And so the explanation or the illustration of that proposition that I give to visitors is that in the UK, notably in England, in the old days, let's say 25, 30 years ago, if this was the beginning of the case, that was the end of the case, the oral portion would be very important, it'd be very big and it would be near the middle and before the middle of the case. By contrast, in Luxembourg, the orals portion is smaller and occurs towards the end of the proceedings.

And the tradition, there's a third reason and a fourth one, the third explanation of the difference between the UK and continental countries relates to how advocates are treated by the bench. In England, it's perfectly normal for the judge to say, "Mr. Forrester, how can you argue that given what we said or what House of Lords said …? And the advocate says, "No, no, no, you're not, you're mistaken," and there is a debate as between, as you might say, a student and a teacher.

Now in some continental traditions, a judge who asks provocative question like that would be regarded as revealing a predetermined inclination or a fixed opinion as to the correctness of one side or the other in the case before him and that would be regarded as misconduct. And I had many discussions with my colleagues saying, if you are going to have oral presentations, it's an opportunity for the court to reveal to the advocates, "Hey, I'm not convinced on this question. I'm not convinced on that question, please address it." And I said in writing, it's natural that any advocate would like to be better informed about what is on the judge's mind. And so from the point of view of the efficiency, getting goodness out of the oral presentation, don't sit there like a stuckey, as we would say in Scotland, be interventionist, be active.

And the last big difference between the UK and the civil law tradition is that there is in the UK a very well-established phenomenon of judicial review. And you know that in matters large and small, there is the possibility that a court may strongly disagree or may disagree with the legality of what the public authority has done. And that may be from denying the bus pass to the person who is physically disabled or something as hugely sensitive as choosing when to advise the sovereign to prorogue parliament. So judicial review is a big constitutional institutional part of the UK's tradition, but other countries are not like that. In France, there's a Conseil d'État and it receives, for example, has received many complaints about the COVID restrictions. And I was told last week that out of about 1,250 challenges to COVID restrictions, the Conseil d'État had intervened maybe 50 times, had said those restrictions go too far. That readiness to check governmental action is by no means universal across the European Union.

So those are a few of the biggest contrast between the traditions of the European courts and the traditions of the UK courts.

Barry Baines:

You've actually picked up something which I heard Lord Pannick say in a recent Hamlyn lecture, that advocates should welcome questions rather than being threatened by them, and you endorse that, I take it, from what you've said.

Ian Forrester QC:

I absolutely do. And it's an opportunity for the advocate revealed to him or her what it is that's on the judge's mind. And it is far more efficient for the judge to say, "I don't get that. Can you explain it better? I don't think you've fairly represented the case against you." It's far better to say that directly than to sit silently for fear of being impolite to the bar. Indeed, I have written an article somewhere saying that it's the duty of judges to be rude to counsel from time to time, because it keeps them on their toes.

Barry Baines:

Excellent. Now I wonder if I can turn to the way the General Court works in that one judge is assigned the role of le juge-rapporteur and at the conclusion of the oral stage of the proceedings, as I understand it, he prepares a report of the hearing and summarises the argument of the parties and the judges deliberate on the basis of that draft. Ultimately, a unanimous decision comes about. In this country, on the other hand, the appeal judges may nominate one of their judges to write a judgment, but they may give separate ones and the judgment may not be unanimous. What do you say about the merits of delivering a unanimous judgment compared with a majority one, which has a strong dissenting minority judgment, but which leaves the way open for argument on future appeals, perhaps in the higher courts?

Ian Forrester QC:

Let me correct one portion of what you asked about the practice of the general court. It is correct that the juge-rapporteur is in charge of formulating the court's opinion, that's right. However, the court does a lot of preparation before the oral hearing if there is one. And the juge-rapporteur prepares before hearing the parties a detailed report, which goes into all aspects of the case. And in that respect, it's different, the practice is different from the Court of Justice. Now, therefore when the argument in the General Court occurs, the judges have already event probably months debating between themselves what the case is about and what way they're going to go. And if there is disagreement between them or different approach, then they will be aware of it before the oral argument occurs.

Now you're quite right, the judgments are signed by each judge, that is correct. And that is a formal requirement that indicates that a quorum of judges did participate and did sign it off on the ultimate judgment. The process of reaching consensus involves frequently concessions, mutual concessions. I really don't like paragraph 86 because well, can we improve it? No, I think you need to take it out altogether. And this is my paragraph 86. Well, if you do that back and forth goes the negotiation, sometimes, sometimes, most cases don't involve strong disagreement but a few cases do.

Now, it is often discussed whether the quality of the judgements would improve if there were the possibility of dissents. And in my view, at least at the General Court, it would be helpful for there to be occasional dissents. I think it's not desirable to have, as we saw on the US Supreme Court about 20 years ago, sometimes there would be four judgments giving different approaches to the resolution of a case and so the outcome was really muddy and the impact of the dissents was greater and the conviction carried by the case was diminished.

I think that it is good as in Strasbourg to have occasional written dissents - fairly short. And I think that for a number of reasons. One is that from the point of view of the parties, it's fair, it's nice, it's polite. If you want to say to the losing party, "What you said was not stupid, what you said made good sense to several of us, one of us, but other countervailing arguments prevailed." And so it's a reassurance to the party that they were not barking up their own tree.

Separately, a dissent can be like a sleeping policeman on the road, a warning to go slowly and an indication to the public authority, "Well, okay. On this occasion, what you did was okay, but we're not giving you a green light for every incursion upon intellectual property or the imposition of gigantic fines or access to data." I think that because big decisions in (take it competition cases) in Brussels are few, it's a small number of cases, the law tends to develop jerkily and in big oomphs, say five and 10 years apart. And I think that if there were dissents, there would be more clarity about the limits of the new principle being endorsed.

So I'm aware of the arguments against, but on balance I think that a dissent does, as Learned Hand said, I may be misquoting, it's a contribution to the brooding spirit of the law in the future.

Barry Baines:

Now I wonder if I can turn to Brexit, whatever the merits and demerits of it, some would say that it was rushed through in order to achieve ideological goals and the detail wasn't thought through sufficiently in advance. Now we're already seeing squabbles taking place over fishing rights and the Irish border question. I'm wondering where all this leaves the judges who have to decide how Court of Justice cases should be applied in the UK, because we are now a sovereign state. After all, we still have to work alongside our EU friends and partners. How do you see that evolving?

Ian Forrester QC:

I was appointed before the referendum, I was a junior judge on the day the referendum was announced. I was encouraged by the Court to speak publicly, although with appropriate moderation and discretion, during the post-referendum and pre-referendum circumstances. I said before the referendum and after the referendum, if we're going to do Brexit, that it's a political act, it's a severing or an attempted severing of ties between the UK and the European Union and that can be regretted or celebrated depending on your view of your own identity.

But for 45 years, the UK has been pooling its sovereignty to regulate enormous numbers of subjects to do with daily life in the UK. Now, the number of topics that are governed by European law are so numerous that a huge amount of work and a huge amount of reflection needs to be done in order to avoid confusion, not just confusion, but economic damage, loss of opportunity and distress for individuals. And so if you're going to do Brexit, the political act, don't do Brexit until some of the following things have been properly addressed.

Now, as we know, the choice was taken to, "Get Brexit done," as if it was a sort of straightforward matter, like I offered the analogy I'm going to switch my gym or my golf club or the primary that my daughter attends. It's a binary choice and we'll move from one regime to another. But Brexit is actually a much more complex, far, far, far more complex, almost existential question. So it's closer to, shall we get divorced, or shall we immigrate? Because after, if the answer to that is affirmative, then there follow on as string of very difficult, very sensitive questions.

And I am dismayed, and I think you'll find many, many judges in continental Europe and in the UK who are dismayed by the uncertainties still unresolved. The British civil service has been working like mad things to produce statutory instruments, but where a choice has been presented between continuity, stability and prosperity and divergence and sovereignty, it would appear that the government's choice has generally been to favor sovereignty at the cost of disruption. I know, for example, of literally thousands of people whose status in the light of Brexit, personal status have been suffering because of doubts about their personal status and the regime applicable to them.

So there's a case concerning Madam Bouillet who is a UK citizen resident in France who has challenged before the French courts the denial of access to the voting booth in French municipal elections. Now that's, you might say in one sense, something small, but it's something important. There are certainly the hundreds of thousands of people who have been put into uncertainty, anxiety, fear because their status, their right to remain where they thought was home has been encroached upon by Brexit. And I feel very strongly that Her Majesty's Government has not done its duty towards UK citizens working or retired outside the UK in the EU 27.

Barry Baines:

Thank you, Ian. I wonder if I can move on finally to talk about advocacy in your own career in the European courts. I think it must be 20 years or so since I was first with you in Luxembourg and I wonder if you could tell our listeners what in your career as an advocate rather than as a judge you found the most challenging in appearing before the General Court or the Court of Justice. Are there any particular examples you can call to mind?

Ian Forrester QC:

Gosh, well, I remember my having to argue in French and having lived in Brussels for years and having had a good Scottish education in French irregular verbs, my French was respectable, but pleading in French is another matter. And the Bosman case concerned a footballer who had been badly treated with respect to his transfer and his case produced a revolution in many aspects of the football industry. And before me spoke the leader of the bar of Liège and the leader of the bar of Brussels. Beautiful, beautiful elegant language and recognizing my own imperfections. I began by saying “Apres les rossignols de la Belgique, le corbeau d’Ecosse” - after the Belgian Nightingales, the Crow from Scotland. And that got a laugh and I was even written up in the French sports newspaper on page three, though without a picture, as a frivolous, cheerful account of what I'd said.

So language is a challenge on that occasion. Once you've done it a few times, you realize that in Luxembourg perfect French isn't expected. It's like Latin during the Middle Ages at diplomatic conferences, people make mistakes, people invent words, people get their endings wrong, people don't use the subjunctive when it should be subjunctive, small mistakes are kind of normal and accents are very varied. So after a while, anxiety about French diminishes and pretty much disappears, that was one thought.

Another thought is competition cases are big and they're getting bigger and worse in the sense that the commission for fear of missing something has the habit of producing judgments which are decisions which are 500 pages long. And that has to be summarised for the European Court in 72 days. And that is a huge effort for the advocate. And the temptation is to say, "There are 15 points I want to raise," and really it's only three or four points which are important. So boiling it down and summarising it, making it intelligible is a big challenge.

Now, the written pleadings are indeed translated into French and supplied to the judges, but the annexes, which people often rely on to show a lot of stuff, there's a risk that the annexes will get forgotten. And so again, the demand for simplicity, for clarity, for focus on the essentials is very strong. Separately, you have to recognise that if you're going in English and you have court composed of Denmark, Lithuania, Romania, Malta, and Ireland, you need to recognise when speaking that the effort of oral simultaneous translation is a big strain. The interpreters are brilliant, they're fantastic, but it's exhausting for them and it isn't easy for the judges either because if the advocate speaks too fast, then the different interpreters will have to omit, but the different interpreters, Lithuanian interpreter may omit something different than the Romanian interpreter. And so the thread can readily be lost.

And that's why the court has gradually reduced the length of pleading time. When I started, two hours, 90 minutes would be what you were given, but now it's 20 minutes, 15 minutes, 25 minutes maybe, but not long speeches. It's a great thrill. If you're experienced and you've spoken to the court before then it's a big challenge. Jeremy Lever used to say that you should spend at least one hour of preparation for every minute of speech. And before an argument, I would drive my colleagues mad by constantly reviewing and shortening and simplifying and focusing what it was we were going to say. And I was notorious and I admit - but I don't regret it -for going maybe 15 drafts or 20 drafts of a speech of 20 minutes, making it simple, focusing on the two or three winning points and then having a summary ready at the end, which boiled it down in just two minutes.

Barry Baines:

Making every minute crucial, yes.

Ian Forrester QC:

And I remember with affection seeing you sitting there behind.

Barry Baines:

Ian, thank you ever so much for talking to us today. Your insights have been invaluable and I'm sure the listeners will find it extremely interesting.

Thank you for listening to Baines Law. Listen out for future podcasts where we will continue to discuss issues of interest to the legal community. If there is a professional perspective that you would like to share, get in touch via our website at wwwbarrybaines.com. You can also follow us on Twitter, @BainesLaw. We look forward to presenting to you again very soon on Baines Law.