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Brexit priorities for the legal sector

01 February 2017

The legal sector is playing a key role in shaping the upcoming negotiations for exiting the EU. Robert Bourns considers priorities for the profession during this period of transition.

The legal sector is playing a key role in shaping the upcoming negotiations for exiting the EU.

Our profession is a major contributor to the UK economy. Some of the figures may be familiar by now, but are worth repeating. The sector is the second largest legal sector in the world, and the largest in Europe. We train and employ over 370,000 people throughout England and Wales, and, by the most recent measures, contributed £25.7bn to the UK economy in 2015. England and Wales is well known as a global centre for legal services, particularly for international commercial transactions, dispute resolution and arbitration. In 2015, over 22,000 commercial and civil disputes were resolved here through some form of dispute resolution, and English and Welsh law remains the governing law in global corporation arbitrations.

This is a success story that the profession and government should be telling. Last week I had the opportunity to meet the lord chancellor along with other practitioners. She said, 'as we enter this exciting new era, I am pleased to be working with judges and the industry to ensure we tap into all talents and continue to lead the world in the increasingly competitive legal services sector.'

The prime minister also recognised the sector as highly competitive in this week's industrial strategy. We are pleased that the significant contribution of our profession is being recognised by government.

Now that the European Union (Notification of Withdrawal) Bill has been introduced to the House of Commons, following the decision of the Supreme Court , we need to ensure that the outcomes of the negotiations deliver favourable conditions - conditions that allow our profession and jurisdiction to remain a global legal centre.

Over the last six months, we have spoken to ministers across the Department for Exiting the EU, Department for International Trade, Ministry of Justice and Home Office. We have given written and oral evidence to committees in the Commons and the Lords on trade in service, civil justice cooperation, transitional arrangements and cooperation in criminal justice. We have roundtables with a number of government departments and are speaking to parliamentarians from across the political spectrum.

At the end of last year, we submitted evidence to the Department for Exiting the EU and Ministry of Justice on the legal services sector and justice systems priorities for the negotiations with the EU.
Read our report on Brexit and the law.

Five priorities

In our report we identified five key priorities for the legal services sector.

Firstly, the government should seek continuing access for UK lawyers to practice law and establish law firms in EU member states through its new arrangement with the EU. It should also negotiate to ensure solicitors are able to represent clients before the courts, and ensure advice from UK solicitors to clients continues to be subject to legal professional privilege.

Secondly, we must maintain mutual recognition and enforcement of judgments and respect for choice of jurisdiction clauses across the EU in civil cases. This can be achieved through participation in established conventions and frameworks, such as the Brussels I, Brussels IIA, Rome I and Rome II. It will be particularly important to maintain cooperation arrangements relating to family law and child law. We were delighted to see the lord chancellor show her support for continued civil cooperation as a key part of the government's Brexit negotiations just last week.

Thirdly, we should continue to work collaboratively in the fields of policing, security and criminal justice to protect citizens, including information sharing and extradition arrangements. This includes continued participation in the European Arrest Warrant, in bodies such as Eurojust and Europol, and the sharing of information in criminal justice cooperation arrangements such as Schengen II. I was pleased to hear the prime minister acknowledge the importance of cooperation in her speech on 17 January, in which she identified criminal justice cooperation as one of twelve key points the government intends to focus on during the Brexit negotiations.

Fourthly, it is vital that the government ensures legal certainty is maintained during the withdrawal process. The UK's withdrawal from the EU will lead to a unprecedented amount of changes to legal rights and obligations for both businesses and individuals, so it will be crucial that sufficient certainty and time to adapt is given to both transitional arrangements and new legal frameworks.

Finally, we are encouraging the government to work 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. We are home to some of the best law firms in the world, globally renowned courts, and an abundance of legal talent. Simply put, it makes good sense to choose England and Wales as the law of choice for contacts, and destination of choice of arbitration, and we need the government’s continued support in promoting this.

The ongoing strength of the legal sector will play a major role in the success of the post-Brexit UK economy, and by supporting our clients we will help maintain our position as a major centre for global commerce. I reinforced this point, and others, when I gave evidence before the Justice Select Committee on Tuesday as part of its Implications of Brexit for the justice system inquiry.

A look at 2017

2017 will be a busy year in the Brexit process:

February - Germany holds its presidential election. This may indicate the outcome of Germany’s general election later in September 2017.

March - the UK government is likely to give notice to the European Council of the EU of its intention to leave the EU. From this point, the two-year negotiation period begins. The UK spring budget will be delivered on 8 March.

May - the French presidential elections will be held, and the Great Repeal Bill will likely be introduced in our Parliament. The G7 Summit will be held in Italy and a new president of the European Council will be installed.

September - Germany will hold its general election to elect members of the Bundestag.

March 2019 - The longstop date for exit negotiations to conclude, unless an extension is agreed. Without an extension, EU treaties will cease to apply to the UK from the date of entry into force of a withdrawal agreement, or two years after notice of triggering article 50.

There is much work to be done before March 2019, and negotiations are almost certain to be challenging and robust. We will continue to engage with those leading the negotiations and advocate on behalf of solicitors, and their clients, for an agreement that delivers access for practitioners in the EU, mutual recognition and enforcement of judgments, and legal certainty as we make this transition.

Tags: Theresa May | European Union | president | Parliament | Brexit

About the author

Robert Bourns was the 172nd president of the Law Society. He is a senior partner at TLT Solicitors, where he specialises in employment law. Robert is one of five representatives for the City of London constituency, a member of the Law Society's Equality and Diversity Committee, and a member of the Regulatory Affairs Board Regulatory Processes Committee.
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