Just over one year on from the referendum and we are beginning to see some of the detail of what life outside the EU might look like. The first round of negotiations, covering citizens' rights, the single financial settlement, and the Ireland/Northern Ireland border, began in June; the UK government published its position on the rights of EU citizens living the UK post-Brexit; and in July, the European Union (Withdrawal) bill – the first of eight Brexit-related bills to be included in the Queen’s speech in June – was introduced into Parliament.

At this stage there are still more questions than there are answers about our future.  In the meantime, the UK remains a full member of the EU until further notice. There are no changes in the legal position for the time being. The ultimate impact on our rights and obligations will depend on the outcome of the withdrawal agreement and new relationship between the UK and the EU.

We have been monitoring these developments closely and we have already 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 here.  We will continue to do so throughout the negotiations and in the implementation of the withdrawal agreement.

We're also hosting a series of Brexit seminars for members where leading authorities from the Scottish legal profession and the academic community will analyse the UK’s withdrawal from the EU.

Brexit Q and A

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 EP 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.

There will be no immediate change in immigration status. In the longer term, it will depend on what the UK and EU agree to in negotiations.  On 26 June, the government published a paper entitled The United Kingdom's exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU.

This paper covers topics such as residence, benefits, pensions and social security contributions.  In essence, qualifying EU citizens will be able to enjoy full rights of residence after we leave the EU if the following conditions are met:

  • the EU citizen must have been resident in the UK before a specified date (not yet decided but not before 29 March 2017 when Article 50 was triggered and not after the date we leave the EU) and must have completed a period of five years’ continuous residence
  • those EU citizens who arrived and became resident before the specified date but who have not accrued five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years

Qualifying EU citizens will have to apply for their residence status.  EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status.

The negotiations so far have uncovered a divergence of views on certain aspects of citizens’ rights between the UK and EU, particularly in relation to the requirement to apply for the new ‘settled status’ in order to protect their rights and the potentially onerous administrative burden this will cause.

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.  The UK government’s paper on citizens’ rights makes clear that any professional qualification currently subject to mutual recognition arrangements under EU law will continue to be recognised if they were obtained prior to the UK’s withdrawal from the EU and vice versa.  We are pushing to ensure that the government negotiates the transnational practice of law with the EU in the withdrawal agreement.

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. 

If you would like to discuss further, please contact our Education, Training and Qualifications team for advice. 

We are well aware that a number of our members who work in other jurisdictions, many of whom were not eligible to vote in the referendum, are worried about the impact of a UK exit on their living and working situation, including the potential for having to requalify in the law of their host jurisdictions. 

We will be in a better position to advise on next steps in relation to both your immigration status and your status as a recognised lawyer in your host jurisdiction once exit negotiations are concluded. In the meantime, we recommend that you speak to your host bar and ask what the process would be for requalification, pointing out that your status as an EU national is not likely to change until end March 2019 at least.

Bars have their own requirements for requalification, including any exemptions that might apply based on the individual’s professional experience. It may be the case that a separate route can be developed for UK lawyers already working in another EU state.

We would be happy to speak to the bar on your behalf, as we want to do what we can to help manage the transitional process for our members.  Please contact Katie Hay if you would like to discuss further.

During the negotiation period, while we are still members of the EU, yes.  However, only lawyers from EU and EEA member states have rights of audience in front of the Court of Justice and General Court of the EU and so it is likely that once the UK has left the EU, these will discontinue for Scottish solicitors. 

If you want to have continued rights of audience, you may wish to look into requalifying in another EU jurisdiction.  Whatever the outcome of government negotiations, we will continue to maintain positive links with colleagues in EU bar associations, to seek clarity in relation to admission and continued practice rights and to ease the transitional process for our members.

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) would 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 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 the 1972 Act and so would be repealed once the Act is repealed, unless explicitly retained.

The European Union (Withdrawal) Bill – the first of eight Brexit-related bills to be included in the Queen’s Speech in June – was introduced into Parliament on 26 July.  This bill sets out how EU-derived law will be incorporated into UK law following the repeal the 1972 European Communities Act on the day of exit. 

Upon the bill’s introduction, we commented that because of its constitutional significance, it will be essential for the government to take a whole of governance approach in its negotiations and during the parliamentary process, taking account of the devolved administrations and external organisations, including the professions, civic society and other representative groups.

It is our view that each piece of secondary legislation should be consulted upon and, given the compressed timescales, this should start as soon as possible rather than waiting until next spring when the Bill will have gone through the parliamentary processes at Westminster.

We also think that once the process of identifying EU-derived UK law is complete, this body of law should be collated to form an easily identifiable and accessible collection. It would also be useful to have a definition of ‘domestic’ law given that we have three devolved administrations in addition to the UK 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.

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