Brexit Q&A

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.

Former Prime Minister, Theresa May 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. According to Article 50 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).

The UK and EU were originally working to the deadline of Friday 29 March 2019. However, due to the lack of consensus within the UK parliament on the draft agreement that was reached between the negotiating parties, the EU agreed to extend the negotiating period to 31 October 2019. It has been further extended until 31 January 2020 to take account of the results of the general election on 12 December. 

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.

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, unless the UK leaves without a deal, in which case the deadline will be 31 December 2020.

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.
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 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.

During the negotiation period, while we are still members of the EU, yes. If we leave with an agreement in place that largely resembles the current draft, Article 91 of that 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. 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.

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

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.

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 your firm or company for business post-Brexit. You can access it alongside various other sources of advice and information at

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.

Our Brexit policy work

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