Information and updates

Here we'll be bringing you the latest Brexit developments in relation to the ongoing negotiations between the UK Government and the EU Commission. See our Brexit policy page for all the of the latest Society briefings, responses and position papers on Brexit-related legislation and parliamentary inquiries.

We'll also be highlighting the latest publications from relevant and reliable sources of interest. For any further information please contact our Head of International, Katie Hay, at katiehay@lawscot.org.uk or 0131 476 8351.

Brexit negotiations

At its meeting on 15 December, the European Council ratified the agreement reached on Phase 1 of the negotiations and agreed a set of guidelines for Phase 2, which sets out details about the proposed transitional arrangements and the general framework for the future relationship between the EU and the UK.

On 11 December, the Prime Minister gave a statement to the House of Commons on the outcome of the negotiations.

Meanwhile, Stefaan De Rynck, a senior adviser to Michel Barnier spoke at a Chatham House event, giving a frank account of the main challenges still to be overcome as the UK and EU teams attempt to negotiate an orderly Brexit.

On 8 December, following 6 rounds of negotiations, the UK government and EU Commission finally reached agreement on Phase 1 of the Brexit negotiations.  Provided the deal receives the approval of EU leaders when they meet at the European Council summit on 15 December, the negotiating teams will now be able to move on to Phase 2.

Phase 1 covered citizens' rights, the Irish border and the financial settlement and the following points (among others) were agreed:

  • There will be "no hard border" between Northern Ireland and the Republic and the "constitutional and economic integrity of the United Kingdom" will be maintained
  • EU citizens living in the UK and vice versa will have their rights to live, work and study protected. The agreement includes reunification rights for relatives who do not live in the UK to join them in their host country in the future
  • Financial settlement - No specific figure is in the document but Downing Street says it will be between £35bn and £39bn, including budget contributions during a two-year "transition" period after March 2019

The joint UK-EU report can be accessed here.  Paragraph 32 specifically deals with the legal profession and provides that decisions on recognition of qualifications granted to persons covered by the scope of the Withdrawal Agreement before the specified date in the host State under the Recognition of Professional Qualifications Directive (2005/36/EC) and Article 10 of Directive 98/5/EC (lawyers who gained admission to the host State profession and are allowed to practise under the host State title alongside their home State title) will be grandfathered.  Recognition procedures under these Directives that are ongoing on the specified date, in respect of the persons covered, will be completed under Union law and will be grandfathered.  In other words individuals who are in the process of requalifying in another Member State when the UK formally leaves the EU, whether by undergoing an examination process or by assimilation (having practised under his or her home title for 3+ years), will be able to complete the requalification process.

Outside the scope of the EU mandate for the first phase of the negotiations are:

  • the continuing protection of rights for UK nationals covered by the Withdrawal Agreement who move after the specified date to take up residence in another Member State;  
  • professional qualifications: future recognition decisions, recognition of qualifications of non-residents
  • recognition of licences and certificates that are currently recognised EU-wide
  • lawyers practising under home title; and
  • territorial scope of economic rights, in particular secondary establishment and cross-border provision of services

In other words (without expressing a view on the likelihood of any particular outcome) the above points are still to be negotiated.

Other judicial/administrative issues

  • On cooperation in civil and commercial matters there is general agreement that: (a) EU rules on conflict of laws continue to apply to contracts before withdrawal date and non-contractual obligations where an event causing damage occurred before the withdrawal date; (b) EU law on jurisdiction should continue to apply to legal proceedings instituted before the withdrawal date; (c) EU law should continue to apply to the recognition and enforcement of judgments handed down before withdrawal; (d) Relevant pending judicial cooperation should be finalised.
  • Questions remain over whether EU law should continue to apply to the recognition and enforcement of judgments handed down after withdrawal in proceedings ongoing on the withdrawal date. Disagreement persists over whether a choice of court clause concluded before withdrawal should trigger the application of EU law on recognition and enforcement of judgments in litigation after withdrawal.
  • On police and judicial cooperation in criminal matters there is broad agreement that: all structured and formalised cooperation procedures ongoing on the withdrawal date that have passed a certain threshold still to be defined should be completed under EU law.  
  • On ongoing EU judicial procedures, it has been agreed between the negotiators that: the CJEU remains competent for UK judicial procedures with the UK as applicant or defendant and for preliminary references originating in the UK, registered at the CJEU on the date of withdrawal; and those procedures should continue through to a binding judgment.
  • There is disagreement over the continued competence of the CJEU in relation to facts having arisen before the UK's withdrawal, the enforceability of the decisions of the CJEU after withdrawal and the possibility for the UK to intervene before the CJEU in the future. 
Publications

The European Commission Directorate-General for Justice and Consumers has published a third stakeholder notice on the impact of UK withdrawal in the field of data protection.

At its meeting on 15 December, the European Council agreed a set of guidelines for phase 2 of the Brexit negotiations, which sets out details about the proposed transitional arrangements and the general framework for the future relationship between the EU and the UK. 

On 12 December, the EU Commission posted a Q&A clarifying the detail of the agreement reached on 8 December (see below) by the UK and EU negotiating parties.

In November 2017, DG Justice and Consumers published two stakeholder notices, one on the withdrawal of the UK and its impact on EU company law rules and one on the impact on EU rules in the field of civil justice and private international law.

Concerns have been raised about these notices. The Society’s Brexit Policy Working Group looked at these notices and took the view that they are generally accurate inasmuch as they outline what would happen in the event of no agreement but are intended to be read critically.  They are pointing out the technical detail that shouldn’t be overlooked and should perhaps be viewed as a warning to the negotiating parties to work constructively to reach a compromise.

The Working Group will write to DG Justice to clarify the status of these notices and to underline the negotiating priorities that we highlighted to the UK government in relation to ensuring stability in the law; maintaining freedom, security and justice; and maintaining recognition and enforcement of citizens’ rights, including the rights of parties with pending cases before the Court of Justice of the EU.