I have written recently about the legal issues caused by the uncertainty triggered by Brexit. I feel that it is becoming increasingly evident that the ramifications of the vote to Leave the EU last summer were never fully considered by the British government, especially within the legal sector.
Such legal issues include the practise of law in a post-Brexit UK. I noted last year that many practising solicitors in the UK were opting to register with the Irish Law Society in order to ensure they could continue to practise EU law.
However, there perhaps could be a solution to hand for those lawyers worrying about their qualifications in the event of the UK eventually withdrawing from the EU: mutual recognition.
For only recently, a former senior trade minister said that the ‘genuinely mutual benefits’ of professional recognition would mean that UK lawyers could expect a continuation of their right to practise in EU jurisdictions post-Brexit.
Lord Maude of Horsham, who was Minister of State for Trade and Investment in former Prime Minister David Cameron’s government, told a press briefing it would be ‘very surprising if mutual recognition arrangements’ could not be sorted out relatively easily.
Lord Maude, now a senior adviser at US firm Covington, was also a government minister from 1987-1992, and had a direct role in the design of Directive 89/48/EEC on which subsequent professional recognition regulations were based.
Such continuation of the mutual recognition regulations was likely, Lord Maude said, because the ‘benefits on both sides’ were now well-established.
The former Swedish Prime Minister Carl Bildt, who is also a senior adviser at the same firm, identified ‘justice’ as an area where early agreement between the EU and UK can be reached.
I wrote recently on the very topic of ‘justice’ with regards to the Brexit and the upcoming negotiations. I noted that justice does not seem to feature highly on the UK government’s list of priorities entering the negotiations. The UK government, as we are all too aware of, prefers instead to prioritise economic matters rather than legal matters. This is despite the fact that the UK co-operates closely with other EU Member States in relation to matters of justice, and law and order. Whilst I feel that justice is not recognised as an area of priority entering the Brexit negotiations the UK government, Mr Bildt’s comments regarding justice being a potential area for early agreement seems promising. (I will keep my fingers crossed.)
However, Mr Bildt did warn that while the UK government expected Art 50 and interim arrangements could happen ‘in parallel’, the EU negotiating team did not match that expectation. ‘Their mandate is just a divorce mandate,’ he noted.
Yet perhaps lawyers’ concerns are not entirely without foundation, nor do they look set to be reassured soon. Jonathan Goldsmith, the former secretary-general of the Council of Bars and Law Societies of Europe (CCBE), commented:
‘The lawyers’ directives are not standalone but depend on what will happen on mutual recognition and the single market overall. If we are out of the single market without exceptions, and have to return to WTO rules, then there are big problems.’
As we know from Prime Minister Theresa May’s recent Brexit speech, the UK goverment is now committed to a so-called ‘hard Brexit’ which would see the UK withdraw entirely from the EU, including the Single Market. Thus, Mr Goldsmith’s comments are indeed worrying.
Mickael Laurans, who is the Head of the Law Society’s Brussels office, said the qualified lawyers transfer scheme would mean continued recognition for EU lawyers in England and Wales. However, he did also note that reciprocal agreement for solicitors and barristers post-Brexit ‘would depend on the goodwill’ of the EU’s 27 member states. Perhaps it is just me, but that does not ring with optimism.
We can hope that the current model might be used as a foundation to build something constructive in the future and regardless of the deal that eventually is negotiated between the UK and EU. But it appears that until we are informed of the final agreed deal, a lot of uncertainty and question marks will persistently remain, particularly in the legal sector.