Brexit Q&A

In advance of the end of the transition period on 31 December, the UK law societies' joint Brussels Office has produced updated guidance and Q&As for UK lawyers practising in the EU and EU lawyers practising in the UK.

If you are practising in Scotland under your home title, the joint UK Law Societies’ Brussels Office has produced guidance and Q&As for EU lawyers practising in the UK, including specific information for Scotland. Please contact Katie Hay if you have any questions over and above this.
If you’re an EU, EEA or Swiss citizen, you and your family will need to apply to the EU Settlement Scheme to continue living in the UK after 30 June 2021. If your application is successful, you’ll get either settled or pre-settled status (depending on the length of time you have lived in the UK). The deadline for applying is 30 June 2021.

The government has published a toolkit to equip employers with the necessary information to be able to advise their employees who are EU citizens; and the Home Office has released a podcast, which covers everything an employer needs to know if they are thinking of hiring anyone from outside the UK after the transition period (1 January 2021). The podcast is available on Acast, Apple and Spotify.
While the UK is still a member of the EU, you can requalify as a Scottish solicitor either after having completed three years’ continuous practice in Scotland (subject to demonstrating sufficient knowledge of Scots law), or by taking an aptitude test.  If the UK leaves the EU with a withdrawal agreement in place, you will be able to stay and practise here under the terms of the Establishment Directive during the transitional period. If the UK leaves without a deal, the Scottish Parliament has passed regulations to give EU lawyers in Scotland until the end of December to make the necessary changes to their practice to comply with the new regulatory framework, such as changing practice or transferring qualifications.

Once the Lawyers Directives no longer apply, 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), only that you will no longer be able to do so within the terms of the Establishment 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.

This will vary from jurisdiction to jurisdiction and if you have registered with your host bar you will need to seek clarification before the end of the transition period on your position from the bar. Under the Withdrawal Agreement, any practice rights you acquire prior to the end of the transition period in your country of residence (under either the MRPQ Directive or the Establishment Directive) will be guaranteed after 31 December 2020.

On practice rights, we have published an article in the Journal, which is directed our members who are based in other EU member states; and the joint UK Law Societies’ Brussels Office has produced updated guidance and Q&As for UK lawyers practising in the EU after the transition period ends. If you have any questions over and above this, please contact Katie Hay.

With regard to your immigration status, again this will vary from country to country. The UK government has published guidance on this, which they are updating regularly when each EU state makes its position known. The living in guides offer more about the country you live in, and you can sign up for email alerts on these guides.

During the transition period, yes but you will lose these rights from 1 January 2021. However, the Withdrawal 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. The same principle applied to proceedings before the EU Intellectual Property Office.

Thereafter, if you want to have continued rights of audience, you would need to have requalified and be authorised to practise in another EU jurisdiction. 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 (or any EU/EEA) State.
A number of Scottish solicitors have requalified in Ireland in a bid to maintain their EU status but the Law Society of Ireland has clarified that they will only issue practising certificates to solicitors who practise in Ireland and so it is clear that this is not a viable solution for Scottish solicitors unless they are practising out of Ireland and comply with certain requirements, such as having appropriate professional indemnity insurance cover in place. 
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.
Additional resources

The transition period will end on 31 December 2020. 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 updated guidance and Q&As for UK lawyers practising in the EU. They have also produced updated guidance for EU lawyers practising in the UK.

The change in rules that will take effect from 1 January 2021 will have an impact on legal businesses and legal services, regardless of whether or not a deal is finalised.  On the various areas of law, much of what we reported in the run-up to the UK’s formal departure from the EU when it looked possible that no withdrawal agreement would be forthcoming is still relevant.The UK government recently published updated guidance for legal professionals on Family law disputes involving the EU and also on Cross-border civil and commercial legal cases. The Intellectual Property Office has published guidance on changes to IP law from 1 January 2021.

Meanwhile, the European Commission has published a Communication on readiness at the end of the transition period which gives detailed consideration to areas such as trade in goods and services, energy, travelling and tourism, mobility and social security, company law and civil law, and data, digital and intellectual property rights.

You can access all of the notices here. The services notice can be accessed here.

For business owners, Scottish Enterprise has created a Brexit self-assessment tool to identify what you can do now to prepare for changes taking place following the Brexit transition period. You can access it alongside various other sources of advice and information at www.prepareforbrexit.scot.

We have also written 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. An updated article was issued in September 2019.

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