Practice Rights in the EU post-Brexit

To assist UK legal practitioners providing legal services on a temporary and/or permanent basis in one or more EU Member States, the joint UK Law Societies’ Brussels Office has produced a paper that describes the current state of play regarding lawyers’ practice rights, and clarifies understanding of their acquired rights as set out in the draft Withdrawal Agreement. However, it does not deal with the rights for lawyers arising after 31 December 2020, i.e. after the end of the transition period.

It also details some of the work that the UK law societies and Bars are doing in the field of practice rights. To the greatest extent possible, they also recommend actions and steps to be taken by practitioners to make sure they comply with the regulatory framework in place and are ready for the changes to come.

If you have any questions about any aspect of the paper, please contact Katie Hay in the first instance.

We have also written a couple of Journal articles about the impact of Brexit on practice rights for Scottish solicitors working in the EU and for Scottish solicitors working in the UK, which may be of further assistance.

Brexit Q&A

The EU Commission has now published the text of the final draft Withdrawal Agreement following its cautious approval by the Prime Minister's Cabinet on the evening of 14 November.  Although it is not yet clear whether the UK parliament will support the deal, below is a summary of the terms of the agreement.

Overview

The draft Withdrawal Agreement sets out the terms of the UK's exit from the EU, including a Protocol on Northern Ireland, and is an agreement in principle between the UK and EU negotiating teams on the full legal text. This text revises the previous version of the draft Withdrawal Agreement which was published in February 2018. It includes 185 Articles, 3 Protocols on Gibraltar, Ireland and Cyprus and a series of Annexes. A further document setting out an outline of the Political Declaration on the future relationship is also included. This document sets out progress on the scope of the framework for the future relationship, but both parties underline that negotiations are ongoing to finalise this Political Declaration. These are complemented by a Joint Statement on the draft Withdrawal Agreement which provides a summary of the outcome of the negotiations and the content of the agreement that has been reached.

Next steps

  • An emergency European Council summit will be held on 25 November to approve the text
  • The text will then be submitted to a vote in the House of Commons during December
  • The Withdrawal Agreement package would need to be ratified by 29 March 2019 to take effect from 11pm (GMT). Therefore, an agreement is needed before the end of 2018 to allow all parties sufficient time to ratify the agreement
  • Should the agreement be rejected by either side, unless the issues could be rapidly renegotiated, then the UK would leave the EU without an agreement unless it rescinded its notification to leave, a development that is considered highly unlikely

Negotiations on a free-trade agreement between the UK and the EU are then expected to be carried out from 29 March 2019 during the transition period, with a view to an agreement applying from 1 January 2021, when the transition period would come to an end.

We are monitoring developments closely and we have been actively promoting the interests of our members and the public to politicians and civil servants. Full details of our various position papers can be found on our Brexit policy page.  We will continue this work throughout the negotiations and during the implementation of the withdrawal agreement.

The Prime Minister triggered Article 50 on 29 March 2017. 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:

  1. on the entry into force of such a withdrawal agreement; or
  2. if no new agreement is concluded, after two years (unless there is unanimous agreement to extend the negotiating period).

Both the UK and the EU are working to the deadline of Friday 29 March 2019.

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 but it will not participate in internal EU discussions or decisions on its own withdrawal.

On the EU side, the agreement is being negotiated by the European Commission, which has set up a Task Force headed up by Michel Barnier. The EU Parliament negotiator is Belgian MEP, Guy Verhofstadt. His role is to keep the Conference of Presidents fully informed of developments and to help prepare the European Parliament's position in the negotiations, in close consultation with the Conference of Presidents.

The European Parliament will need to approve a possible agreement on the conditions for the UK’s departure from the EU. Secretary of State for Exiting the European Union, David Davis is the chief negotiator for the UK government.

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.

On 8 December 2017, following 6 rounds of negotiations, the UK government and EU Commission reached agreement on Phase 1 of the Brexit negotiations, which included citizens’ rights.  Part 2 of the final draft agreement provides that 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. 

In June 2018, the UK government published details of its settlement scheme, which all EU citizens will need to sign up to.  EU citizens who have lived in the UK for 5 years by the time they sign up can apply for settled status.  EU citizens who have not lived in the UK for 5 years can apply for pre-settled status.  The scheme will be fully open by 30 March 2019 and all EU citizens living in the UK will need to have signed up by 1 July 2021.

The government has also published a toolkit to equip employers with the necessary information to be able to advise their employees who are EU citizens.

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.

You will be able to stay and practise here under the Establishment Directive during the negotiation period while we are still members of the EU. Articles 27 and 28 of the final draft agreement include the following provisions in relation to recognition of professional qualifications:

  • 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.  However, the rights set out in article 3 of the Establishment Directive, namely the right to practice under your home-country title, will no longer apply post-Brexit. This does not mean that you will no longer be able to practise under your home title in Scotland (provided you meet the settled status requirements set out above), only that you will no longer be able to do so within the terms of that Directive, which will have an impact on the type of work you are able to carry out. 

If you would like to discuss further, please contact Katie Hay.

As noted above, Part 2 of the final draft agreement provides that 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.  You will need to contact the relevant government department in your host state to find out how they intend to implement that agreement.  On practice rights, we have published an article in the Journal, which is directed our members who are based in other EU member states. If you have any questions over and above this, please contact Katie Hay.

During the negotiation period, while we are still members of the EU, yes.  Furthermore, Article 91 of the final draft agreement provides that if a UK-qualified lawyer has represented or assisted a party in proceedings before the Court of Justice of the European Union or in relation to requests for preliminary rulings made before the end of the transition period, that lawyer may continue to represent or assist that party in those proceedings or in relation to those requests. This right shall apply to all stages of proceedings, including appeal proceedings before the Court of Justice and proceedings before the General Court after a case has been referred back to it.  A UK-qualified lawyer may also represent or assist the United Kingdom in proceedings covered by Article 90 of the agreement in which the United Kingdom has decided to intervene or participate.

Thereafter, if you want to have continued rights of audience, you may wish to look into requalifying in another EU jurisdiction. A number of Scottish solicitors have chosen to requalify in Ireland in order to maintain their EU status.  We do not know whether UK lawyers who have done this will be recognised before the CJEU post-Brexit, although it is worth pointing out that Article 19 of the CJEU Statutes provides that “only a lawyer authorised to practise before a court of a Member State or of another State which is a party to the Agreement on the European Economic Area may represent or assist a party before the Court”.  It does not appear to require the lawyer to be a national of that State.

We published an article in the Journal on the impact of Brexit on practice rights of Scottish solicitors working in the EU.  If you have any questions over and above this, please contact Katie Hay

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) will 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  ("ECA 1972"), which is what gives this type of law direct force in UK domestic law, 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 ECA 1972 and so would be repealed once the Act is repealed, unless explicitly retained.

The European Union (Withdrawal) Act 2018 received royal assent on 26 June 2018.  Its purpose is to ensure that the UK is left with a functioning statute book once we leave the EU. The Act repeals (from exit day) ECA 1972 and contains provisions converting into UK domestic law, directly applicable EU legislation, which would otherwise lapse on the UK exit.  This is subject to powers given to ministers to revise such laws by means of regulations to remove provisions concerning the EU, EU institutions and other member states, which will no longer be appropriate in the UK following Brexit.  Specifically, they will be able to enact regulations either:

  1. to address any failure of EU law to operate effectively or any other deficiency in EU law (section 8); or
  2. that they consider appropriate for the purposes of implementing the withdrawal agreement if [they] consider that such provision should be in force on or before exit day

This approach has been subject to criticism because of its reliance on the widespread use of secondary legislation to achieve the necessary transposition of EU law into domestic law. In an attempt to address concerns, the Act sets out several areas which cannot be legislated for in this way (for example, imposing or increasing taxes, creating a criminal offence, or amending, repealing or revoking the Human Rights Act 1998).  It is anticipated that Westminster will pass over 1000 regulations by exit day, while 800 will go through the Scottish Parliament.

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.

Our Brexit policy work

Our latest briefings, responses and position papers on Brexit-related legislation and parliamentary inquiries