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Brexit: one year on

5 March 2018

On 29 March 2017 the UK Government began the historic process of triggering Article 50 and commencing its withdrawal from the European Union.

In the 12 months since Article 50 was triggered, the Law Society has been working hard to represent, promote and support members through the Brexit process.

Priorities for Brexit

Following consultation with our members, we identified five key priorities for our work on Brexit:

  • Continued mutual access for solicitors to practise law and base themselves in the UK and EU member states; to have rights of audience in EU courts, institutions and the Unified Patent Court (when it opens); and for their clients to have legal professional privilege.
  • Continued mutual recognition and enforcement of judgments and respect for choice of jurisdiction clauses in the UK and EU.
  • Maintain collaboration in policing, security and criminal justice.
  • Ensure that legal certainty is maintained throughout the process of withdrawal, including transitional arrangements.
  • Ensure government works effectively with the legal services sector to continue to promote England and Wales as the governing law of contracts, the jurisdiction of choice and London as the preferred seat of arbitration.

Progress on our priorities

We were pleased to see that the UK Government has recognised the importance of continued civil justice co-operation in a paper it released last August. The Law Society has been doing intensive work in this area since the referendum. All our major asks on civil justice co-operation were adopted and a significant amount of our messaging was reflected in the government’s paper. The paper noted that the government:

  • Will seek to maintain as close and comprehensive cross-border civil judicial cooperation as possible, on a reciprocal basis.
  • Has a clear statement of intention to remain in the Hague Conventions and Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
  • Will enact Rome I and II instruments on choice of law and applicable law.

To conclude phase one of the negotiations, the UK and EU agreed on key principles of the Withdrawal Agreement. The joint UK-EU report on phase one notes continued recognition of qualifications for solicitors. The Withdrawal Agreement sets out that those solicitors and European lawyers who have gained the host state title in the member state and vice-versa in the UK, will be able to continue such practice in the host state after Brexit.

The Law Society will continue to make the case for continued practice for host state law (including EU law) under home state title (including the right to appear in host state courts), the ease of requalification as a lawyer in another member state and of current border crossing and recognition procedures, to UK Government and EU stakeholders. In particular we recently highlighted that if the UK were to replicate a EU - Canadian model, this would essentially be a no deal for legal services.

The Law Society has also been calling for transitional arrangements since January 2017 and we are pleased that both sides are seeking to agree a 'stand-still transition period' as soon as possible.

Engaging with government and parliament

We have been and will continue to highlight our priorities to the UK Government and Parliament. We have met with senior stakeholders in government, including the new lord chancellor David Gauke MP and secretary of state for exiting the EU, David Davis MP, to brief them on our key concerns on Brexit including mutual market access and civil justice cooperation.

We’ve also been working with parliamentarians to raise our issues. We’ve submitted written evidence to ten parliamentary committees and given oral evidence to five committees. In December 2017 we were mentioned five times in the House of Lords EU Select Committee report titled ‘Deal or No Deal’, which outlined the potential impact on the UK of leaving the EU without a deal and examined the feasibility of a transition period immediately post-Brexit.

We continue to meet with MPs and peers from across the house and are actively briefing MPs and peers on the EU (Withdrawal) Bill and Anti-Money Laundering and Sanctions Bill.

Engaging with the EU and member states

As well as speaking to the UK Government, we have also been setting out our priorities to EU stakeholders in the EU Parliament and Commission. We are also meeting with European bars and law societies to emphasise the need to continue to work together as a legal community.

The next year

As the Brexit negotiations continue into the second phase this year we will continue our work of representing the interests of our members and wider profession to secure a favourable outcome. These negotiations will cover very important issues, including the transition period and the final trading relationship the UK will have with the EU after it leaves.

England and Wales is home to a vital, dynamic and international legal community and market, and post Brexit we want it to continue and thrive. There are challenges ahead but we are working hard to meet them.

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