Parliamentary briefing: European Union (Future Relationship) Bill
This briefing outlines initial analysis from the Law Society of England and Wales in relation to the UK-EU Free Trade Agreement (FTA) ahead of it being debated in both Houses on 30 December 2020. View the full text of the FTA.
We welcome the agreement. Given the constraints of the short negotiating timeframe available, and the inevitable loss of market access that will occur when the UK leaves the single market, this agreement represents a positive development in our relations with a key trading partner.
The inclusion of a legal services chapter signals the importance of the legal services sector to the UK economy. While lawyers based in England and Wales will not immediately see significant gains in market access compared to other non-EU lawyers, the agreement provides a positive foundation for future work to reduce barriers to UK lawyers providing services in the EU.
The agreement’s provisions on legal services are contained in Chapter 5 Section 7. The provisions in question include the right of UK lawyers (including solicitors of England and Wales) to supply legal services in EU member states using their home title in relation to home jurisdiction law and public international law. EU member states are to allow UK lawyers to establish a branch in their territory to deliver legal services, subject to conditions set out in the investment liberalisation chapter of the FTA. This is to be without prejudice to shareholder or partner requirements.
However, the legal services chapter is subject to limits set by the non-conforming measures listed by each EU member state in the annexes. Under the agreement EU member states can set registration requirements in their territory as a condition for UK lawyers to supply.
These measures can limit the general principle of home title practice, impact on joint practice with local lawyers and may reflect existing restrictions that other non-EU lawyers face in relation to partnership, profit-sharing as well as management and ownership in law firms.
We will be working with national bars and regulators in the EU and EEA to reduce any resulting barriers, as we have done for the past four years.
The agreement goes beyond the General Agreement on Trade in Services, which would apply if there was not an agreement, in multiple areas, but most importantly through provisions on movement of independent professionals, short-term business visitors, and graduate trainees (under intra-corporate transferees). The provisions on criminal judicial co-operation are also very positive.
We remain concerned about civil judicial cooperation and mutual recognition of judgments. A decision on the UK’s accession to the Lugano Convention is still pending on the EU side. Even if the EU were to agree accession tomorrow, there will be an enforcement gap of several months from 1 January onwards until the Convention will be in force again.
Any measure to ensure the Lugano Convention is in place as soon as possible would be of benefit not just to lawyers, firms and the legal sector, but all businesses and consumers across the UK and EU who wish to enter into agreements across borders.