We will continue to update this page at every stage of the process, whether or not the UK leaves the EU with an agreement in place.
2. if no new agreement is concluded, after two years (unless there is unanimous agreement to extend the negotiating period).
Should an agreement be concluded, it is likely that a transitional period will follow the exit date, during which time, 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. As things currently stand, should no deal be reached, the EU Treaties will cease to apply to the UK on 31 January 2020 and we will leave the EU with no transitional arrangements in place.
The practical effects of this are far-reaching and would include reverting to World Trade Organisation rules on trade, causing uncertainty for businesses; increased border control (for goods and people); uncertainty for cross-border citizens over their rights to reside and work; and a loss of reciprocal laws covering many areas including family law, criminal law and insolvency.
Both the UK and Scottish Government have been preparing for this eventuality and a large volume of secondary legislation has already been passed, which will go some way to reducing the level of uncertainty. Technical notices produced by the UK Government and guidance produced by the Scottish Government on devolved areas seek to explain some of the uncertainty and have been regularly revised to take legislative developments into account.
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.
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.
This will vary from jurisdiction to jurisdiction and if you have registered with your host bar you will need to seek clarification on your position from the bar. 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.
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.
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. It is not clear 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 (or any EU/EEA) State.
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. 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. However, the paper does not deal with the rights arising for lawyers either after the implementation period ends on 31 December 2020, or in the event that the UK leaves the EU with no withdrawal agreement in place.
For further information about what a no-deal Brexit might mean for you and your practice, the UK government has published a series of technical notices, many of which have a bearing on various areas of practice (handling civil, commercial and family cases, intellectual property matters, oil and gas, and farming and fishing to name a few), as well as on professional services and mutual recognition of qualifications, which includes specific reference to the legal profession and practice rights.
For business owners, Scottish Enterprise has created a Brexit self-assessment tool to identify what you can do now to prepare your firm or company for business post-Brexit. You can access it alongside various other sources of advice and information at www.prepareforbrexit.scot.
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.