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Brexit and the legal sector - our work so far

29 March 2019

On the day that the UK intended to leave the EU, it remains unclear when and how the UK will withdraw from its EU membership.

Whilst this uncertainty remains, the Law Society continues to advise its members to prepare for all eventualities on Brexit. More information on our guidance for a no-deal Brexit can be found below.

Since the EU referendum result in June 2016, we have provided information and advice to our members on the implications for the legal profession.

We have also been working with members to identify what the sector needs from the Withdrawal Agreement and the future UK-EU relationship.

We have been engaging with government, parliament and EU stakeholders about these priorities and will continue to do so when the negotiations turn to the UK-EU future relationship

See our work on Brexit and the legal sector

Priorities

Following these discussions, we have identified the following priorities:

  • continued mutual access for lawyers to practise law and base themselves in the UK and EU member states, rights of audience in EU courts, institutions and the Unified Patent Court (when it opens) and for their clients to have legal professional privilege
  • maintained civil and family judicial co-operation including mutual recognition and enforcement of judgments and respect for choice of jurisdiction clauses across the EU
  • maintained collaboration in policing, security and criminal justice
  • ensured legal certainty throughout the process of withdrawal, including securing transitional arrangements, and
  • ensured government collaboration 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.

Further details about each of these priorities can be found in the Law Society’s 2017 report Brexit and the Law.

We’ve also published policy papers on:

Government reaction so far

The draft Withdrawal Agreement contains some positive elements for the legal services sector. It contains relevant provisions on:

  • mutual recognition of legal qualifications
  • civil judicial co-operation, and
  • provisions for ongoing cases.

The political declaration between the UK and EU also recognises the importance of having mutual recognition of professional qualifications and judicial co-operation in family matters.

The UK government have gone further in their White Paper on the future relationship (published in July 2018) stating that they:

  • seek to join the Lugano Convention, and explore a new bilateral agreement with the EU on civil judicial cooperation, covering a coherent package of rules on jurisdiction, choice of jurisdiction, applicable law and recognition and enforcement of judgments in civil, commercial, insolvency and family matters
  • are exploring options on intellectual property, including participation in the Unified Patent Court and unitary patent system, and
  • are building on existing EU trade agreements including additional, mutually beneficial arrangements for professional and business services such as permitting joint practice between UK and EU lawyers.

The lord chancellor, David Gauke MP, has said that promoting legal services is a priority for him. He recognises that the UK leads in global legal services and that English law and UK courts provide the certainty, clarity and flexibility that clients from around the world.

We are also speaking to the UK government about what other steps we think they need to take in the event of no deal.

We were pleased to see that the UK government deposited its instrument of accession to the Hague Choice of Court Agreements Convention 2005.

In the event of no deal, the UK will be a contracting party to the Convention. The UK has also ratified the 2007 Hague Convention relating to child support.

We are also speaking to the UK Ministry of Justice about the UK seeking to accede to the Lugano Convention in a no-deal scenario.

Supporting members

The risk of the UK leaving without a deal still remains in the next few weeks or at a later date.

The Law Society therefore recommends that firms continue to plan for this eventuality.

Both the Law Society of England and Wales and the UK government have both published information to support businesses, and specifically for solicitors.

The government has published a series of notices on how to prepare for a no-deal Brexit.

The most relevant of these for solicitors are handling civil legal cases involving EU countries and providing services including those of a qualified professional.

The government has also provided guidance on providing services more generally, including legal services, to EU and EFTA states. This includes links to some country specific guidance.

The Solicitors Regulation Authority has also published guidance for EU lawyers practising in the UK.

The Law Society of England and Wales has published guidance on the potential effects on our members in the event of a no-deal Brexit in the following areas:

UK lawyers working in the EU and EFTA states should now take steps to make sure that they can continue to practise after exit day, should the UK leave the EU without a deal.

UK lawyers working in the EU and EFTA states are advised to contact the local regulator in the country in which they are working for specific advice.

We have also prepared an extensive overview of the national regulations that apply in each jurisdiction in the EU/EFTA. As this is a live document, it can be requested by emailing international@lawsociety.org.uk.

The Law Society of England and Wales forms part of the UK Delegation to the Council of Bars and Law Societies of Europe (CCBE), which also recently published extensive guidance on the effect of all Brexit scenarios on practice rights both for EU lawyers working in the UK and for UK lawyers working in the EU.

All this information can be found on our Brexit webpage and we will update this with further guidance and information in the coming weeks.

If you have any questions you can contact us via brexit@lawsociety.org.uk.

We have been holding events across the jurisdiction to speak to members about their preparation for a no deal.

We also continue to raise the potential impact of Brexit in the press. In the last few months, we have achieved coverage in the Independent and the Express and the president spoke about Brexit on Sky Business.

Influencing decision makers

We have engaged with a number of influential stakeholders to discuss the legal sector priorities for the EU negotiations.

In recent months, we have:

  • Ministers - Met with the lord chancellor, solicitor general, justice minister and business minister to discuss no deal. Since the referendum we have met with ministers in the Department for Exiting the EU, Department for International Trade, Home Office and Department for Business, Energy and Industrial Strategy.
  • Civil servants - Had regular contact with civil servants in the Ministry of Justice Department for Exiting the EU, Department for International Trade and Department for Business, Energy and Industrial Strategy. Officials from the Ministry of Justice and Department for Business, Energy and Industrial Strategy have spoken at our regional events on no-deal preparations.
  • Parliament - Continued to meet with MPs and peers on our Brexit priorities. We have been mentioned in debate on Brexit statutory instruments over 25 times in the last few months. Since the referendum we have given written evidence to over 15 select committees and provide oral evidence a further seven times, leading to our policy recommendations being included in several reports.
  • EU institutions - Engaged with officials from the EU Commission, the UK Permanent Representation and the European Parliament, through the UK Law Societies’ Brussels Office. We have hosted events in Brussels to raise awareness of key issues in the negotiations including private client, family law and civil judicial co-operation.,
  • Bars’ and law societies’ leaders - Discussed the implications of Brexit and our priorities for the negotiations with European bar representatives on a bilateral basis, and via the Council of European Bars and Law Societies. We have also been discussing steps that can be taken in individual member states to ensure our members face as few barriers as possible in a no deal scenario.
  • Brexit Law Committee -Took part in and provided secretariat for the group set up by the former lord chancellor and lord chief justice to bring together a group of senior practitioners to identify and provide solutions for legal issues on Brexit. The chair is Robert Elliott, former senior partner at Linklaters. The group is currently looking at issues such as civil justice co-operation.
  • Professional Business Services Council’s (PBSC) Mutual Market Access Group - Contributed to the PBSC and worked with Freshfields Bruckhaus Deringer - who chair the Mutual Market Access Group - to identify what the professional and business services sector would want from the UK-EU future relationship and wider trade negotiations.

Global Legal Centre campaign

In 2016, we launched a campaign to promote the benefits of the law of England and Wales, highlighting that it makes good business sense to choose:

  • the law of England and Wales as the international law for contracts
  • English and Welsh courts as the forum for settling disputes
  • London as the preferred location to resolve disputes through arbitration, and
  • our expert legal profession.

You can download a campaign leaflet which we are sharing with members of the global profession and businesses through our international work.

We have also produced a series of videos which outline the benefits of England and Wales.

We have also been working closely with the government and judiciary on their activity to promote the jurisdiction. We hosted a reception on our campaign in Parliament in November last year.

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