Q and A following UK vote to leave European Union

At this early stage there are more questions than there are answers about our future. This is because a lot of the detail concerning our future relationship with the EU and what it will mean for our professional and personal lives has still to be discussed and decided. 

These negotiations will take place at EU governmental level and we will hear a lot more in the news in the coming months about what these negotiations will cover and what the likely outcomes will be. 

In the meantime, the UK remains a full member of the EU until further notice. There are no changes in the legal position for the time being. The ultimate impact on our rights and obligations will depend on the outcome of the withdrawal agreement and new relationship between the UK and the EU.

The Law Society of Scotland will be monitoring these developments closely and we will strive to represent the public interest and the interests of our members from the initial transitional period, throughout the negotiations and in the implementation of the withdrawal agreement.

We're also hosting a series of free Brexit seminars for members where leading authorities from the Scottish legal profession and the academic community will analyse the UK’s withdrawal from the EU.

Very little in the short-term.  Although the UK has voted to leave the EU, we will continue to be full members for up to two years.  During that time EU law will continue to apply, we will still have all rights accorded to us as EU citizens, and while there is likely to be a degree of economic instability as a result of the vote, our day-to-day lives are otherwise unlikely to change for some time.

Since the referendum there have been some challenges to the process for invoking Article 50 and speculation over whether it will be invoked at all. At this stage, however, the official position is still that which was set out by the UK Government in its paper, The Process for Withdrawing From the European Union(No 9216), which states that “the result of the referendum … will be final” and the government “will have a democratic duty to give effect to the electorate’s decision”.

Before becoming Prime Minister, Theresa May said “The country voted to leave the European Union, and as prime minister I will make sure that we leave the European Union." She has since created a new cabinet position, Secretary of State for Exiting the EU.

Article 50 of the Treaty on European Union sets out the process by which a member state can notify the EU of its withdrawal. It obliges the EU to try to negotiate a ‘withdrawal agreement’ with that state within a period of two years.

The EU Treaties would cease to apply to the UK either;

a)      on the entry into force of such a withdrawal agreement or

b)      if no new agreement is concluded, after two years (unless there is unanimous agreement to extend the negotiating period).

During the negotiation period, EU laws will still apply to the UK and the European Communities Act 1972 will still be in force. The UK will continue to participate in other EU business as normal (for example, it will still assume the rotating presidency of the EU Council between January and June 2017), but it will not participate in internal EU discussions or decisions on its own withdrawal.

The Article 50 process will not begin until the UK government notifies the European Council of its decision to withdraw.

When it is triggered is ultimately up to the UK government. There is no requirement for the Prime Minister to notify the European Council immediately.

David Cameron handed over to a new Prime Minister, Theresa May, on Wednesday 13 July. She has previously stated that she does not intend to trigger Article 50 before the end of 2016. However, European leaders have said any delay to Britain’s exit would “unnecessarily prolong uncertainty”.

On the EU side, the agreement would be negotiated by the European Commission following a mandate from EU ministers and concluded by EU governments acting by a qualified majority, after obtaining the consent of the European Parliament.  While the UK government will participate in negotiations, and a new cabinet position for Secretary of State for Exiting the EU has been created, it will not be involved in the decision-making process.

If this happens and the other 27 member states do not unanimously agree an extension of the negotiating period, the UK could be left with exit terms that it is unhappy with.

The Law Society of Scotland will closely monitor the government’s negotiations with the EU as they develop. We will ensure that our members’ interests are represented to law and policy makers during this process and we will be assessing what the outcome of the negotiations will mean for our members: for their business, for practice rights, for the domestic legislative process and for our future interaction with the EU, issuing updates, advice and support to our members at all stages.

In the meantime, we have published a paper setting out some of the options for a renegotiated future with the EU and what some of the issues surrounding a vote to leave the EU are for our members and the various areas of law they practise.

As well as updating our members and advising them on the practical effects of the negotiations, we understand that the potential for economic ramifications could have a knock-on effect on the financial stability of firms. We will monitor this closely and offer tailored support depending on the extent of the impact. 

In the short-term, our professional practice helpline will be happy to try and answer any initial queries you might have on the practical implications of the decision. We also understand that many people will be upset by the outcome of the vote. LawCare can offer independent support and will be able to discuss any professional or personal concerns you have.

Notwithstanding any immediate economic effects of the vote to leave, which may have an impact on business decisions of your firm or those of your client, there will be no immediate impact on your practice.  The UK remains a member of the EU until further notice. There are no changes in the legal position for the time being. The ultimate impact on rights and obligations will depend on the outcome of the withdrawal agreement and new relationship between the UK and the EU.

There will be no immediate change in immigration status. In the longer term, it will depend on what the government negotiates however, in the run-up to the referendum, the Leave campaign made assurances to EU citizens already working in the UK that their right to live and work in the UK will not be affected if Britain votes to leave. There are longstanding conventions protecting the rights of citizens acquired under international treaties.

During the two-year negotiation period, free movement of EU workers will still apply, and so people could still come to the UK from elsewhere in the EU but their immigration status after UK exit is unclear and would depend on the outcome of negotiations with the EU.

You will be able to stay here and practise here under the Establishment Directive during the negotiation period while we are still members of the EU.  After the negotiation period has ended, your position will depend on the outcome of those negotiations, whether we are still covered by the Establishment Directive, and whether you wish to continue to practise under your home title.

Remember that you can requalify as a Scottish solicitor either after having completed an adaptation period of at least three years (provided you can demonstrate sufficient knowledge of Scots law), or by taking an aptitude test. 

If you would like to discuss further, please contact our Education, Training and Qualifications team for advice. 

We are well aware that a number of our members who work in other jurisdictions, many of whom were not eligible to vote in the referendum, are worried about the impact of a UK exit on their living and working situation, including the potential for having to requalify in the law of their host jurisdictions. 

We will be in a better position to advise on next steps in relation to both your immigration status and your status as a recognised lawyer in your host jurisdiction once exit negotiations are concluded. In the meantime, we recommend that you speak to your host bar and ask what the process would be for requalification, pointing out that your status as an EU national is not likely to change for two years after the Article 50 negotiation process has begun.

Bars have their own requirements for requalification, including any exemptions that might apply based on the individual’s professional experience. It may be the case that a separate route can be developed for UK lawyers already working in another EU state.

We would be happy to speak to the bar on your behalf, as we want to do what we can to help manage the transitional process for our members.  Please contact Katie Hay if you would like to discuss further.

During the negotiation period, while we are still members of the EU, yes.  However, only lawyers from EU and EEA member states have rights of audience in front of the Court of Justice and General Court of the EU and so it is likely that once the UK has left the EU, these will discontinue for Scottish solicitors. 

If you want to have continued rights of audience, you may wish to look into requalifying in another EU jurisdiction.  Whatever the outcome of government negotiations, we will continue to maintain positive links with colleagues in EU bar associations, to seek clarity in relation to admission and continued practice rights and to ease the transitional process for our members.

As part of our Smartcard project, we looked at the risk of a leave vote on the validity of the card.  The UK is still a full member of the EU until such time as a negotiated withdrawal agreement is in place. Beyond that, while the cards meet an EU-qualified standard, they are underpinned by both Westminster and Scottish Parliament legislation and so are not reliant on EU membership for their operation.  We are therefore confident that their validity will continue beyond the UK’s eventual exit from the EU.

As a pan-EU identity card, while questions do arise in relation to continued recognition as a lawyer and access to the EU courts, the Smartcard has never been an indication that the carrier has rights of audience.  The card merely confirms that you are a practising Scottish solicitor, which will not change. 

We are licensed by the Council of EU Bars and Law Societies (CCBE) to issue this particular card, which bears their logo. Again, we do not anticipate any problems with the continued use of this card, as the CCBE’s membership includes associate and observer countries but we will confirm this with colleagues the CCBE and update our members as necessary.

All existing EU provisions will continue to apply during the negotiation period, as the UK will still be a full member of the EU during that time. Thereafter, it depends on the type of law it is and how it has been implemented in the UK. It will also depend on the terms of the withdrawal agreement with the EU and whether it will be necessary (or desirable) to retain certain provisions in order to continue to engage with the EU.

In principle, EU law with direct effect (Treaties and Regulations) would cease to apply once the withdrawal agreement is in place, the UK is no longer a member of the EU and the European Communities Act 1972 has been repealed. It is unlikely however that domestic law makers will want to ‘wipe the slate clean’ at this point, as this would require a large body of domestic law to have been prepared to ensure that important areas are not left unlegislated for. It is therefore important that effective transitional arrangements are in place.

EU law with indirect effect (Directives) has been transposed into domestic legislation already. This will have been either through primary or secondary legislation. If the former, it will continue to be a part of UK and Scots law until and unless it is specifically repealed. However, most statutory instruments deriving from EU Directives have been enacted under section 2 of the 1972 Act and so would be repealed once the Act is repealed, unless explicitly retained.

Wading through such a large body of law in the lead-up to the UK’s secession would be a difficult task and so again, it is likely that effective transitional arrangements will be necessary to ensure that the provisions continue to apply until and unless they are specifically repealed.

It is likely that much of what the UK decides to retain will depend on the outcome of the withdrawal agreement and new relationship between the UK and the EU.

EU law is an integral part of the route to qualification as a solicitor – it is taught pervasively on the LLB, it is examined on the alternative route to qualification, and those requalifying into Scotland from other jurisdictions are required to sit an examination in EU law.

The UK remains a member state of the European Union. It is too early to know what the outcome of the UK government’s post-referendum negotiations will be, especially in relation to access to the single market. It is possible – depending on the outcome of the negotiations between the UK government and other member states – that Scottish solicitors will require to continue to have an understanding of the workings of the single market.

We will not be making any changes to the Foundation Programme (LLB) outcomes relating to European Union law in the coming academic year. We will also continue to examine those on the alternative route to qualification and those requalifying from another jurisdiction on the EU law.