Barnier/Davis press conference after first substantial round of Brexit talks.

Speaking after four days of negotiations, the Chief Negotiator for the EU, Michel Barnier, today said there had been some areas of agreement about how British citizens living abroad and EU nationals living in the UK should be treated after Brexit. However, he said the EU believes citizens’ rights should be backed by the Court of Justice of the European Union.

Mr Barnier said a clarification of the UK’s position on settling its outstanding debts to the EU when it leaves was also needed.

He said: “A clarification of the UK position is indispensable for us to negotiate and for us to make sufficient progress on this financial dossier, which is inseparable from the other withdrawal dossiers…We know that agreement will not be achieved through incremental steps. As soon as the UK is ready to clarify the nature of its commitments, we will be prepared to discuss this with the British negotiators.”

On the pressing issue of the island of Ireland, there was a first discussion on the impact of Brexit on two key subjects: the Good Friday Agreement and the Common Travel Area. Mr Barnier said there was agreement that the Good Friday Agreement, “in all its dimensions, requires more detailed discussions.” In particular, “more work needs to be done to protect North-South cooperation between Ireland and Northern Ireland.”

There was also agreement that the UK should clarify in the next session how it intends on maintaining the Common Travel Area after leaving the EU.

Secretary of State for Exiting the EU, David Davis, said talks had been “robust” but there was a lot to be “positive” about in terms of the overall negotiations.

The takeaway: there was scant evidence of progress in a press conference to mark the end of the first substantive round of Brexit talks. Both sides looked – and sounded- as far apart as ever on key issues, most particularly on EU citizens’ rights and the divorce bill. Michel Barnier said there was a “fundamental divergence” with the British negotiating team over the way that the rights of EU citizens in the UK would be guaranteed, adding that he needed clarity on the UK’s position on the Brexit bill. Brexit However, David Davis said “We shouldn’t expect incremental progress in every round [of talks].”

Three rounds of Brexit talks were scheduled in June: for August, September, and October. There will be an EU summit in late October, where EU leaders will decide on whether the UK has made sufficient progress on financial issues – the so-called ‘divorce bill’. Only then can the UK progress to trade talks with the EU.

The press conference came today after Andrea Leadsom, Leader of the House of Commons, confirmed the European Union (Withdrawal) Bill will be debated in the Commons on Thursday 7th and Monday 11th September.

The UK Parliament is now in recess, and will return on 5th September.

HL EU Committee publishes Brexit: devolution report

The House of Lords EU Committee has today (19 July 2017) published its report ‘Brexit: devolution’ which examines the impact of Brexit on the devolved institutions.

The key message of the report is Brexit presents fundamental constitutional challenges to the United Kingdom as a whole. Therefore, the UK, Scottish and Welsh Governments, and – ‘if it is formed’ – the Northern Ireland Executive, will have to set aside their differences and work constructively together to achieve an outcome that ‘protects the interests of all parts of the UK’. The report submits that no durable solution will be possible without the consent of all the nations of the UK.

The report’s conclusions for Northern Ireland included (see chapter 3, para 93-99):

  • Due to Northern Ireland’s ‘distinctive’ geographical, historical, political, and constitutional circumstances, it will be ‘profoundly affected’ by Brexit. There will be a significant impact, including on cross-border trade, the agri-food sector, energy, transport, fisheries, access to EU labour, healthcare provision, tourism, and police and security cooperation.
  • It appears the Brexit debate has ‘undermined political stability and exacerbated cross-community divisions, contributing to the collapse of the Northern Ireland Executive and the calling of an early Assembly election’. This, together with the Conservative-DUP confidence and supply agreement at Westminster, and with no nationalist MPs having taken their seats in the new Parliament, ‘has created new uncertainty, underlining the fragility of the political settlement in Northern Ireland’.
  • Political stability in Northern Ireland must not be allowed to become ‘collateral damage’ of Brexit.
  • The specific circumstances in Northern Ireland give rise to unique issues that will need to be addressed during the Brexit negotiations.
  • The unique nature of UK-Irish relations necessitates a unique solution. The report welcomed the European Council’s commitment to seek “flexible and imaginative solutions”, and asks the UK Government to work with the EU negotiators to identify and outline such solutions as a matter of priority.

It is interesting that the EU Committee acknowledged that the use of the phrase ‘special status’ in respect of Brexit is a politically contentious term for unionists, who do not want Northern Ireland’s place in the UK to be undermined. The Committee did however advocate consideration for the specific circumstances in Northern Ireland, which give rise to unique issues. The report finds that these issues, including the issue of the border on the island of Ireland will need to be addressed during the Brexit negotiations.

 

The Repeal Bill Cometh.

The ‘Great Repeal Bill’ promised by the Prime Minister in October 2016 will be published today, Thursday 13th July.

It will repeal the 1972 European Communities Act, and repatriate EU law into British law, thereby ending the general supremacy of EU law.

The Bill, described by the Prime Minister as an “essential step” to EU withdrawal, was the centrepiece of the Queen’s Speech.

When published, its short title will be different as value-laden terms such as ‘great’ are not permitted in legislative titles. It is expected to be titled the European Union (Withdrawal) Bill.

Once it is introduced to the UK Parliament, it will be scrutinised through debates in the Houses of Commons and Lords, and more detailed line-by-line scrutiny in select committees. Amendments can be made to the bill. Both the Commons and the Lords will need to approve the bill, with any amendments, before it can be passed.

Even if the Bill is relatively short, the scrutiny process may take some time if previous examples of EU bills are any guide – remember the legislation to ratify the Maastricht Treaty?
This follows on from the white paper published by the Department for Exiting the European Union on 30 March 2017 which set out the objectives for the proposed Great Repeal Bill:

  • Repeal the European Communities Act (1972) on the day the UK leaves the EU,
  • Replicate some 20,000 pieces of EU law onto the UK statute book,
  • Convert directly-applicable EU law (EU regulations) into UK law,
  • Preserve all the laws that have been made in the UK to implement EU obligations,
  • Ensure the rights in EU treaties that are relied on directly in court by an individual will continue to be available in UK law,
  • Historic European Court of Justice case law will be given the same binding, or precedent, status in UK courts as Supreme Court decisions, and
  • Create powers to make secondary legislation under statutory instrument procedures.

The White Paper commits to ending the supremacy of EU law in UK law. It will no longer be the case that every law passed in Westminster has to be compatible with those passed in Brussels.

It also says that past judgements of the European Court of Justice (ECJ) will be downgraded in status after Brexit. ECJ judgements will have no role in the interpretation of laws passed by Parliament after the UK has left the EU. Pre-Brexit ECJ judgements will continue to have some role in interpreting pre-Brexit EU law, but the UK Supreme Court will be able to overrule these decisions in some cases.

The role of post-Brexit ECJ judgements on pre-Brexit laws is still unclear.

Issues might arise with the two ‘D’s: delegated powers and devolution (remember the devolved states in all of this Brexit mess?)

Regarding delegated powers, the White Paper submitted that a “prohibitively large amount of primary legislation” would be required to make all the necessary changes to the body of EU law. Therefore, it will “provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU”.

The UK Government has acknowledged there will need to be some constraints on how ministers can use secondary legislation to change the law. The problem is that the White Paper is vague about what these constraints will be. For instance, the White Paper acknowledges that ministers’ new powers will have to be time limited, but does not actually discuss what these time limits will be.

The UK Government therefore is seeking a “discussion between Government and Parliament as to the most pragmatic and effective approach to take” on powers.

The issue of devolution poses another headache. The White Paper committed to “intensive discussions with the devolved administrations” about how policy powers repatriated to the UK from the EU will be distributed between the various states which comprise the UK.

Per the Queen’s Speech, the Bill committed to “maintaining the scope of devolved decision making powers immediately after EU-exit” and “having intensive discussion and consultation with devolved administrations on where lasting common frameworks are needed”.

Following the Speech, Prime Minister Theresa May appeared to admit that the consent via Sewel motions of the devolved parliaments may need to be sought before the passage of the Bill. Indeed, the Scottish Secretary David Mundell has recently echoed his previous assurances that a Legislative Consent Motion would be required for some parts of the Bill which are relevant to devolved competences. Other Brexit may also require Legislative Consent Motions.

Confused? You are in good company. For all this has raised the prospect that one or more of the devolved administrations could block the Bill if it does not propose that repatriated powers do not flow directly to them. And even better, there is uncertainty over the extent to which this vote could derail the Bill.

Why bother with such a Bill, it might be asked. Well, EU law covers areas such as environmental regulation, workers’ rights, and the regulation of financial services. Without the Repeal Bill, when the UK withdrawals from the EU, all these rules and regulations would no longer have legal standing in the UK, creating a ‘black hole’ in the UK statute book and leading to uncertainty and confusion. By carrying EU laws over into UK law, the UK Government plans to provide for what David Davis, Secretary of State for Exiting the EU, calls ‘a calm and orderly exit’ from the EU, while giving the UK Government and UK Parliament time to review, amend or scrap these laws in future.

Essentially, The purpose of the Bill is to provide certainty and continuity, ensuring the same rules and laws apply immediately after Brexit wherever possible, and supporting a smooth transition.

MPs will not have an opportunity to vote on the Bill until the autumn. This is perhaps good news for the Conservative government, which knows it will face stiff opposition to the bill. Indeed, it feels as though all parties in the Commons (sans the DUP, who have pledged to support the UK Government in all matters Brexit as part of their confidence and supply agreement) will unite in some form to make the Bill’s progress through Parliament hell for the Prime Minister.

The Labour Party, for example, has vowed to try to wreck the Brexit process by voting against the flagship “Repeal Bill”, unless Theresa May makes dramatic changes.

The Opposition usually gives the Government opportunity to change a Bill between its second and third reading, which would have postponed a Commons flashpoint until next year.

Yet Labour is arguing that government ministers have plenty of time to make those changes before second reading in October.

Keir Starmer, the party’s Brexit spokesman, said recently Labour would attempt to defeat the legislation in just three months’ time. Labour disagrees with most of the Bill’s contents, and is demanding the Bill includes full protection of rights for British workers and consumers, of environmental standards and the devolution of powers across the country. It is also determined to prevent a Government power grab through the use of delegated ‘Henry VIII powers’, allowing future changes without proper Parliamentary scrutiny.

Labour does accept it will not be able to defeat the Bill at its second reading, anticipated to be in October, without a revolt by some Conservative MPs, given Ms May’s working Commons majority of 12. However, it is hoping to play a game of ‘divide and conquer’ – the party believes it will be very difficult for the ten Scottish Conservative MPs to support the Repeal Bill without strong guarantees on devolution.

And it is not just Labour who is promising a difficult path for the UK Government. The Liberal Democrats, who after all fought the general election on a pledge to stage a second referendum on Brexit, also said they would make the passage of the Bill “hell”.

The publication of the Bill today is merely the first step in a long and complex journey for the Conservative Government. The real Parliamentary showdown will not be today. It will be come the autumn.

EU versus UK: pre-negotiations

Last Saturday, the leaders of the 27 remaining EU member states quickly agreed to a negotiating path towards a quick divorce deal with the UK. It is now up to the UK to agree to the guidelines so that the talks can begin. The main delay appears to be the UK election.

Despite the unpromising lead-up to Saturday’s summit in Brussels, including an awkward dinner between European Commission President Jean-Claude Juncker and UK Prime Minister Theresa May, and mutterings about the UK blocking EU budget talks ahead of their elections, the EU27 held out clear prospects of compromise.

However, EU leaders did not appear wholly confident, with concerns mounting that the British Prime Minister still does not grasp how long, complex and difficult the path to agreement will be. The main fear seems to be that even if the Conservatives record a strong victory in next month’s General Election, Mrs May will not be willing to moderate her negotiating positions. Indeed, the converse might be true: bolstered with a strong showing, Mrs May might be more inclined to refuse to engage in compromise efforts.

The European Council’s guidelines  define the framework for negotiations under Art 50 TEU, and set out the overall positions and principles that the Union will pursue throughout the negotiation. The European Council is settling itself down for a bumpy ride, and it is not pulling its punches. In the Core Principles section of the guidelines, it writes:

It reiterates its wish to have the United Kingdom as a close partner in the future. It further reiterates that any agreement with the United Kingdom will have to be based on a balance of rights and obligations, and ensure a level playing field. Preserving the integrity of the Single Market excludes participation based on a sector-by-sector approach. A non-member of the Union, that does not live up to the same obligations as a member, cannot have the same rights and enjoy the same benefits as a member. In this context, the European Council welcomes the recognition by the British Government that the four freedoms of the Single Market are indivisible and that there can be no “cherry picking”. The Union will preserve its autonomy as regards its decision-making as well as the role of the Court of Justice of the European Union.

Basically: the UK cannot boast about a hard Brexit, seek to withdraw itself financially from the EU, but still expect to benefit. After all, you cannot have the benefits of club membership without paying your membership fees.

Under Agreement on arrangements for an orderly withdrawal, the European Council  strongly reiterates citizen’s rights:

The right for every EU citizen, and of his or her family members, to live, to work or to study in any EU Member State is a fundamental aspect of the European Union. Along with other rights provided under EU law, it has shaped the lives and choices of millions of people. Agreeing reciprocal guarantees to safeguard the status and rights derived from EU law at the date of withdrawal of EU and UK citizens, and their families, affected by the United Kingdom’s withdrawal from the Union will be the first priority for the negotiations. Such guarantees must be effective, enforceable, non-discriminatory and comprehensive, including the right to acquire permanent residence after a continuous period of five years of legal residence. Citizens should be able to exercise their rights through smooth and simple administrative procedures.

The European Council also recognised the Northern Ireland/Republic of Ireland quandary, and seeks to limit any potential damage:

The Union has consistently supported the goal of peace and reconciliation enshrined in the Good Friday Agreement in all its parts, and continuing to support and protect the achievements, benefits and commitments of the Peace Process will remain of paramount importance. In view of the unique circumstances on the island of Ireland, flexible and imaginative solutions will be required, including with the aim of avoiding a hard border, while respecting the integrity of the Union legal order. In this context, the Union should also recognise existing bilateral agreements and arrangements between the United Kingdom and Ireland which are compatible with EU law.

Whilst EU law must be recognised and upheld, the EU is willing to be flexible in any final agreement in order to prevent the imposition of a hard border.

Developing the guidelines was the relatively easy part, highlighting as they do the elements all member state agree on: the need to negotiate withdrawal terms before agreement on future relations, and prioritising citizens’ rights, the financial settlement, and border concerns — particularly for Ireland.

However, there is always going to be differences under the surface of the guidelines. And the risk of disagreement among the EU 27 on detailed aspects of the Brexit negotiations is high, largely because the interests of individual countries in the Brexit talks diverge as much as they do on any other issue. A key priority which is subject to different interpretations and interests is citizens’ rights. On the one hand, countries such as Poland and Lithuania are concerned about their own citizens now living and working in the UK. On the other hand, countries such as Spain and Malta have a primary interest in the fate of British retirees who live in those countries, and the related costs for health care and other services.

The European Council has prepped its hand. It put on a strong, unified showing in its swift agreement on the guidelines. But for how long will it stay unified?

Fast forward to this week, and it is the turn of the European Commission to lay down its cards in advance of the forthcoming Brexit negotiations.

The EU’s Brexit negotiator Michel Barnier, presenting the European Commission’s proposed negotiating directives today, said it was wrong to try to make people believe the separation will be a painless process with no impact on people’s lives. He added that it was not the European Commission’s intention to “punish” the UK for leaving the bloc.

He hinted the talks process will be long and complicated, and warned no one should expect a quick deal:

“Some have created the illusion that Brexit would have no material impact on our lives or that negotiations can be concluded quickly and painlessly. This is not the case.

“We need sound solutions, we need legal precision and this will take time.”

Barnier said in order to ensure the talks succeed and agreement is reached, the UK “must put a great deal of energy and effort” into reaching agreement on key three areas: borders (especially between Northern Ireland and the Republic of Ireland), the rights of EU citizens, and the process for calculating a financial settlement.

It was said that the so-called divorce bill – now estimated at €100bn (£84.5bn) -was not a punishment for the UK leaving, but rather a “settling of accounts”.

Barnier made sure to highlight the remaining 27 member states’ show of unity at last weekend’s summit.

It is evident that the looming negotiations will not be straightforward – perhaps much to the displeasure of the British government, especially if time is spent wrangling over the divorce bill. ‘Take Back Control’ must seem like a distant memory, now.

I for one welcome the stance taken by the EU institutions pertaining to the island of Ireland. It is great to see the EU confirm it will attempt to be as flexible as possible when considering the imposition of a border. It certainly makes a change from the endless refrain of “no return to the borders of the past” from the British government…

Brexit and the Bar Council: the Great Paper Debate

I have written a few times about the ongoing uncertainty regarding the outcome of the UK’s referendum on continued membership of the EU, and the legal sector.

Between the issue of whether UK lawyers would be qualified to work in the EU, and UK lawyers thus seeking re-qualification in Ireland, to the issue of the CJEU and whether justice was a priority for the British government during negotiations (it is not, I believe), there constantly have been queries regarding UK law, and how it will operate post-Brexit.

It would seem that the legal sector is growing tired of the lack of official clarification, and wants some certainty restored and answers given.

The Bar Council of England and Wales has said the British government should seek to clarify how it intends to pursue its future relationship with the Court of Justice of the European Union (CJEU), claiming a white paper on its break away from EU law merely ‘scratches the surface’ of the issue. A valid point, as the White Paper has a little section (‘little’ is an appropriate description; it is just four pages long) entitled ‘EU Law in the UK’. Only, it happens to be an annex at the end of the entire White Paper.

In response to the Department for Exiting the EU’s Great Repeal Bill White Paper, the Bar body said domestic courts’ future relationship with the EU will be ‘complex and nuanced’.

For example, the Bar Council said the White Paper does not deal with the possibility of UK courts making references to the CJEU post-Brexit ‘in proceedings concerning a factual situation governed by EU law arising pre-Brexit.’ Conceding this might be considered a ‘rather technical point’, the Bar Council argued whatever provision the Great Repeal Bill makes ‘might not prevent the CJEU from finding other routes to assuming jurisdiction over things taking place in the UK during the period when the treaties remain applicable’.

Moreover, it said there will ‘presumably be a need to provide for the domestic consequences of any dispute-resolution mechanism between the UK and EU appearing in the withdrawal agreement and likewise in any future agreement for the new relationship’.

The Bar Council said it is currently preparing a paper on the CJEU which it says it hopes will provide more opportunity to contribute to the British government’s thinking on matters.

The council added that it is concerned that specific safeguards recommended by the House of Lords Select Committee on the Constitution are not ‘watered down into vaguer ministerial assurances’ and should be clearly written into the text of the bill.

Safeguards proposed include that powers to enact delegated legislation will be used only ‘so far as is necessary to adapt the body of EU law to fit the UK’s domestic framework’ and ‘to implement the result of the UK’s negotiations with the EU’.

 

The Bar Council submitted: ‘…we consider that the white paper could have been clearer on what is or is not to be treated as “EU- derived law” as time progresses and what the approach will be to future changes to EU law which might affect that “EU-derived law” beyond the point of exit from the EU.’

It will be interesting to see what the Bar Council’s paper proposes. No doubt it will be detailed, and will aim to provide more clarity and certainty on the issue. This just goes to show how complex the negotiations will be, and indeed, how unprepared the British government appears to be.

LSE-DB merger meets Brexit politics.

You might remember how I once wrote a blog post or two about the proposed London Stock Exchange-Deutsche Börse mega-merger.

This merger was supposed to create a bridge between Frankfurt, the Eurozone’s financial capital, and post-Brexit London, Europe’s and -sometime – world’s financial centre. However, the mega-merger designed to create a European champion for investors and listed companies — the very embodiment of the Commission’s capital markets union — is in deep trouble. And Brexit is its name.

Uncertainty about the UK’s future in Europe is what might just end the Deutsche Börse-LSE merger.

A few weeks ago, the London Stock Exchange announced its long-planned tie-up with Frankfurt-based Deutsche Börse was in troubled waters. The given reason for the situation was the claim that the LSE held ownership of an obscure Italian bond trading platform. Whilst the €29 billion deal was always far from a sure thing, and technicalities, for all their trouble are still important waters to navigate, the reality is that Brexit has caused jitters.

The merger between the two leading European exchange groups was left hanging by a thread after the LSE announced it was not able to meet a key condition for approval by European Commission competition authorities.

“Based on the Commission’s current position, [London Stock Exchange Group] believes that the Commission is unlikely to provide clearance for the merger,” LSE said.

LSE said the issue is that in mid-February, the Commission ‘unexpectedly’ asked the company to sell its majority stake in MTS, an Italian platform for trading bonds. The Commission’s competition directorate wanted LSE to commit to the sale by Monday, 27th February. The day before this deadline, the LSE said it could not do that.

The exchange’s statement does not explain why, but it implies that the Italian authorities didn’t want it to sell:

“Following dialogue with Italian authorities about the Commission’s required remedy and given prior discussions between the principals and Italian authorities regarding LSEG’s Italian businesses in the context of the merger, the LSEG Board believes that it is highly unlikely that a sale of MTS could be satisfactorily achieved, even if LSEG were to give the commitment.”

The LSE statement also implied that the deal’s chances are now slim. In the last paragraph, it says the company’s board “is highly confident in the strength of the [LSE’s] business, strategy and prospects on a standalone basis, under its strong management team led by Chief Executive Xavier Rolet,” who was going to leave after the merger but would presumably stay if there is no deal.

The Commission has until the 3rd April to make a decision on the issue – a date notably set after the proposed deadline for the British Prime Minister to invoke Art 50, and commence the process of formally withdrawing the UK from the EU.

The fact of the matter is, this was always going to be a very political deal, and it became an even more political deal after Brexit.

After months of preparation, a merger of this scale is not going to wither away on a technicality. What could yet end it is uncertainty over the UK’s departure from the EU.

Given that Theresa May has yet to even invoke Art 50, it remains too early to predict what type of arrangement the UK will acquire from the EU for the City of London. The regulatory uncertainty that financial companies face in the interim makes a deal like the LSE-DB merger risky if not outright negligent. Add to that the suddenly toxic politics in London, and on the Continent, around anything that touches on future relations between the two.

Of course, something might happen which would keep the merger alive. Some type of three-way deal might be struck between the LSE, the Italian authorities, and the Commission to allow the LSE to sell its big stake in the Italian bond-trading platform MTS to a buyer approved by the Italians.

But would require the Commission to extend the deadline for a deal to be agreed. And that’s not looking too likely.

Now, should the merger ultimately fail, the LSE could become the subject of another bid. This would most likely be in the form of a US rival, perhaps ICE or Nasdaq. Alternatively, an Asian may step into the frame, such as the Hong Kong Stock Exchange. These non-European suitors could be emboldened by the lower pound and the likely fall in the value of the LSE’s shares if the DB deal fails.

Regardless of what unfolds, Brexit will be on everyone’s lips. 

Brexit is already having a corrosive effect on the UK’s business ties with the Continent. There may be few signs the UK economy had taken a hit in the immediate aftermath of the EU referendum, but the possible decline of the LSE deal is just the sort of longer-term damage many economists warned about before the vote.

One of the key issues on the list for EU and British Brexit negotiators — in addition to citizen rights, and the ongoing debate over a so-called ‘divorce bill’ — will be how to uphold all the deals and investments negotiated on the assumption that the UK belongs to the EU. As the apparent LSE-DB breakup seemingly demonstrates, many investors just cannot afford to wait for the politicians to sort it all out.

Mutual recognition hope for lawyers

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.