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.

Human rights working group – Bill of Rights for Northern Ireland.

For the past couple of months, a group of QUB students, including myself, have been part of a working group on human rights in Northern Ireland. We are focusing particularly on the need for a Bill of Rights in Northern Ireland, as provided for in the Good Friday Agreement 1998.

The Good Friday Agreement 1998 included the commitment that the upon the establishment of a Northern Ireland Human Rights Commission, it would be asked:

“…to consult and to advice on the scope for defining, in Westminster legislation, rights supplementary to those in the ECHR, to reflect the particular circumstances of Northern Ireland, drawing as appropriate on international instruments and experiences. These additional rights to reflect the principles of mutual respect for the identity and ethos of both communities and parity of esteem, and – taken together with the ECHR – to constitute a Bill of Rights for Northern Ireland.”

This commitment was subsequently reflected in the Northern Ireland Act 1998.

As the 19th anniversary of the Agreement recently came and went  against a backdrop of continued political stalemate and inertia, we feel it is time for the Bill of Rights to be prioritised.

A Bill of Rights for Northern Ireland, which would take into account the particular circumstances of Northern Ireland, would ensure legal recognition and protection of the human rights of all our citizens. Human rights has become topical here since the very announcement of the March election, let alone after the smoke cleared and the parties sought to interpret the results delivered by the electorate. As the political situation rumbles on, with legacy cases and Irish key issues, and as the outcome of Brexit remains uncertain, it is time for a Bill of Rights to be realised for the benefit of all.

Bills of rights provide legal recognition and protection of rights to all citizens, but it applies particularly to those within marginalised and vulnerable groups. This is of relevance to Northern Ireland, where human rights issues have been raised in relation to children and women in detention, women accessing reproductive healthcare, equality for the LGBT* community, and the Irish-speaking community. Adopting a Bill of rights would ensure a defense for these communities, and provide legal protection of their rights and redress for violations of same.

A Bill of Rights for Northern Ireland is not a new proposition. Since the 1960s, there have been calls from across the political divide for a Bill of Rights for Northern Ireland. The common argument is a Bill of Rights would provide for a stable, shared society built on equality and non-discrimination. As part of a constitutional foundation, it would ensure no matter who was in power, human rights would be respected.

It’s been an utter pleasure to work with fellow students on human rights in NI, and I am looking forward to our future work!

We have written a blog post for Rights NI, an online platform for the discussion of human-rights based issues, entitled ‘QUB student working group calls for renewed consideration of NI Bill of Rights‘.

We are currently working on a report which will merge together our individial research and research papers on the subject. It will ultimately conclude that it is time for a Bill of Rights to be realised and implemented.

I am tasked with overseeing the report, and have spent the a couple of evenings after work merging the documents together. It has been fascinating work, and I cannot wait to see where we end up.

US Supreme Court blocks Arkansas from multiple executions.

The US Supreme Court has concluded a dramatic day of legal debate over Arkansas’ unprecedented plan to execute eight prisoners in just 11 days.

The Supreme Court declined to permit the state to go ahead with Monday night’s scheduled executions, in what amounted to a major victory for the condemned inmates’ lawyers and anti-death penalty campaigners. The outcome is certain to give weight to the other pending cases, and confidence to the defense lawyers of the remaining five death-row inmates who still face execution, starting with Stacey Johnson and Ledell Lee on Thursday of this week.

The Supreme Court took several hours to reach its decision, finally announcing at 11.50pm that it had declined to lift a stay on the execution of Don Davis, 54, imposed earlier in the day by the Supreme Court of Arkansas. The judgment brought the number of condemned prisoners who have now been spared the audacious execution schedule set by Republican State Governor Asa Hutchinson to three. The State Governor has found himself in a rush to use a batch of the lethal injection drug midazolam before it expires at the end of the month. Had the Governor’s proposed schedule gone according to plan, it would have marked the most intense schedule of executions in the US in more than 50 years. Even double executions on the same day are rare; the last time it was attempted, by Oklahoma in 2014, it led to a “bloody mess”.

Scott Braden, an attorney for Davis, said the US Supreme Court Justices had heard that Davis had been denied proper independent counsel on the question of his mental health. According to his defence counsel, Davis has an intellectual disability, a history of head injuries, brain damage, fetal alcohol syndrome, and other mental health conditions.

In a statement, Hutchinson said:

“While this has been an exhausting day for all involved, tomorrow we will continue to fight back on last-minute appeals and efforts to block justice for the victims’ families.”

Hutchinson’s schedule had seemed certain to proceed, after a ruling from the Eighth Circuit Appeals Court in St Louis, Missouri, which overturned an earlier temporary injunction imposed by a federal judge. That had opened up the possibility that at least six executions might still go ahead between now, and the end of April.

The Eighth Circuit Appeal overturned the ruling by federal district judge Kristine Baker, in which she questioned the reliability of midazolam, the sedative that is used as the first chemical in Arkansas’ triple lethal injection protocol.

“If midazolam does not adequately anaesthetise plaintiffs, or if their executions are ‘botched’, they will suffer severe pain before they die,” Baker wrote in her opinion.

Until the decision came down from the US Supreme Court, officials with the Arkansas Department of Corrections had been undertaking preparations for the execution to go ahead. Davis had been given his final meal, witnesses had been put in place in the death chamber, and the execution team was being readied.

Of course, Hutchinson’s schedule has merely been limited, not curtailed in its entirety. Attention now swings to the next set of executions on Thursday and beyond. The governor’s spokesperson underlined the determination of the state to press on with its grim timescale. The spokesperson has said the state “will continue, on Thursday, on Monday and then Thursday”, referring to the schedule of death warrants that allows for two executions to take place on each of the next two set dates, and one on 27 April.

But lawyers for the next prisoners set to be executed are already gearing up for an intense legal battle. The influential Innocence Project has joined local defence lawyers in Arkansas to call for DNA testing in the case of Johnson, and the ACLU has also now filed on behalf of Lee on grounds of DNA testing and innocence, and intellectual disability.

As a new death warrant would have to be set for Davis and Ward, with the process of final review of their cases having to start from scratch, it is understood there is not time to reschedule their executions this month in time to avail of the midazolam before its expiration date.

It must be recalled that due to strict distribution controls imposed by more than 30 drug companies in the US and abroad, it is now very difficult for states which carry out the death penalty to acquire medicines for use in state executions.

It remains to be seen what unfolds for the other men currently scheduled for execution. It also remains to be seen whether the death penalty is slowly but surely scheduled for its own end in the USA.

 

Confirmation process of a US Supreme Court nominee.

Today marks the start of the most convoluted Supreme Court confirmation battles in history. Judge Neil Gorsuch, President Trump’s pick to replace Justice Scalia, will appear before the US Senate Judiciary Committee, and endure questioning as to his eligibility to become the country’s 113th Supreme Court justice.

I recently wrote about the issues behind the nomination process, namely that the Democrats might seek to block the nomination following the Republicans’ successful campaign to block President Obama’s nominee last year.

As the hearing gets underway, I thought it might be useful to examine the process itself, and consider how today’s process will compare to other Supreme Court confirmations in recent years.

Confirmation Process

The appointment and confirmation of Justices to the US Supreme Court involves following several steps laid down within the United States Constitution, which have been further refined and developed by decades of tradition. Candidates are nominated by the President of the United States, and must face a series of hearings during which both the nominee and other witnesses make statements and answer questions before the Senate Judiciary Committee. The Committee can vote to send the nomination to the full United States Senate. Confirmation by the Senate enables the President to formally appoint the candidate to the court.

In modern times, the confirmation process has garnered some attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee’s track record aligns with the group’s views.

The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. By convention, nominees avoid revealing too much about their views on the Constitution. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.

At the Senate, a simple majority vote is required to confirm or to reject a nominee. However, a successful filibuster threat could add the requirement of a supermajority of 60 needed in favour of cloture, which would allow debate to end and force a final vote on confirmation. Rejections are relatively uncommon –  the Senate has explicitly rejected just twelve Supreme Court nominees in its history. While Senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered.

Once the Senate confirms the nomination by an affirmative vote, the Secretary of the Senate attests to a resolution of confirmation and transmits it to the White House. The President then prepares and signs a commission, and causes the Seal of the United States Department of Justice to be affixed to the document before the new Justice can take office. The date of commission determines a Justice’s seniority. A ceremony is then held, in which the Justice must take the Constitutional Oath, used for every federal and state officeholder below the President, and the Judicial Oath, used for federal judges before entering into the execution of their office.

Past Confirmation hearings: the Bush Administration

President George W. Bush’s first opportunity to make a Supreme Court nomination came in July 2005, when Justice Sandra Day O’Connor announced her intention to retire. This was the first vacancy on the Court in over a decade. Bush nominated D.C. Circuit Judge John Roberts on 19th July, 2005. While his nomination was pending, Chief Justice William Rehnquist, who had been battling thyroid cancer, passed away on the 3rd September.

With Justice Rehnquist’s passing, Bush then had to rethink his strategy for filling two vacancies on the Supreme Court. He decided to withdraw Roberts’ nomination to be an Associate Justice, instead announcing him as his nominee for Chief Justice on the 5th September. The Senate Judiciary Committee met across the 12th – 15th September for Judge Roberts’ confirmation hearing, and one week later, the Committee voted 13-5, with three Democrats joining the Republicans, to send him to the full Senate. The Senate voted to confirm Roberts on the 29th September 2005, just in time for him to join the Court before the start of its 2005-2006 term the following week.

After deciding to nominate Judge Roberts to be Chief Justice, Bush initially selected White House Counsel Harriet Miers – a lawyer who served as Bush’s personal lawyer before he became President – as the nominee for Associate Justice on the 3rd October. As a result of a campaign by conservatives who wanted a nominee with a demonstrated conservative record and judicial experience, Miers withdrew her nomination weeks later.

Bush then announced his pick of Third Circuit Judge Samuel Alito on the 31st October. Judge Alito’s hearing was not held until 9th – 13th January. Less than two weeks later, on the 24th January, the Senate Judiciary Committee voted 10-8 to send him to the full Senate. Some 24 Senators, -including one Sen Obama – attempted to lead a filibuster to block Judge Alito’s confirmation, but they were unsuccessful.

The Senate ultimately confirmed Alito by a vote of 58-42 on the 31st January 2006, with four Democrats joining the Republicans.

(And as fate would have it, Obama as President later expressed regrets about this filibuster attempt when Senate Republicans announced they would not confirm a nominee to the vacancy left by Justice Scalia’s passing during Obama’s final year in office.)

The Obama Administration

President Barack Obama’s first opportunity to pick a Supreme Court justice came when Justice David Souter announced his retirement in 2009. Obama selected Second Circuit Judge Sonia Sotomayor, making the announcement on the 26th May.

Judge Sotomayor’s hearing was held across the 13th – 16th July. Highlights from the hearing include Republican senators grilling Judge Sotomayor about her ‘controversial‘ views, including her claim that appellate courts “make policy”, and that she believed “a wise Latina woman” would “reach a better conclusion than a white male” judge. Two weeks later, the Senate Judiciary committee voted 13-6 to send her to the full Senate. Republican Sen. Lindsey Graham joined Democrats on the committee in that vote. Nine days later, on the 6th August 2009, the Senate voted to confirm Sotomayor by a vote of 68-31, with nine Republicans voting for her confirmation.

The following year, Obama had another chance to nominate a Supreme Court Justice. He chose his Solicitor General, Elena Kagan, to replace Justice John Paul Stevens, announcing the nomination on the 10th May 2010.

Obama administration senior adviser David Axelrod later recounted the story of Justice Scalia approaching him at an event shortly after Justice Souter announced he would retire in 2009. Scalia apparently said to Axelrod: “I have no illusions that your man will nominate someone who shares my orientation … But I hope he sends us someone smart.” He continued, “Let me put a finer point on it … I hope he sends us Elena Kagan.”

Kagan’s hearing took place across 28th June to the 1st July. Three weeks later, the Senate Judiciary Committee voted 13-6 to send her to the full Senate. Once again, Republican Senator Lindsey Graham joining the Democrats in the vote. Two weeks later, the Senate voted 63-37 to confirm her. Five Republicans and two Independents joined the Democrats.

As the Obama administration came to a close, it seemed unlikely that another vacancy would occur on the Supreme Court. Then on the 13th February 2016, the news broke that Justice Scalia had died.

The upcoming Presidential election thus suddenly took on a new level of significance as Senate Republicans vowed to keep the seat open so that the next President could fill it. Nevertheless, Obama nominated Merrick Garland, Chief Judge of the D.C. Circuit, but Senate Republicans refused to allow the nomination to move forward.

And so here we are today, awaiting the first day of Committee hearings for Judge Gorsuch. Whether the cross-party support in voting to send a candidate to the full Senate as witnessed during both the Bush and Obama administrations will be witnessed is the key question.

Judge Neil Gorsuch, and nomination confirmation.

One of the most convoluted Supreme Court confirmation battles in history will finally reach the U.S. Senate on Monday 20th March, 401 days after the death of Justice Antonin Scalia left a vacancy that has spanned two presidencies and spawned two nominees.

Federal Appeals Court Judge Neil Gorsuch, President Trump’s choice to be the country’s 113th Supreme Court justice, is set to face several days of harsh questioning from Democrats, still enraged at the Republican-controlled Senate’s refusal to consider President Barack Obama’s nominee last year. Then, Senate Republican leader Mitch McConnell vowed the seat would remain vacant through the Presidential election, a promise he kept despite Obama’s compromise nomination of Judge Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit and a relatively moderate jurist.

Judge Gorsuch’s nomination was destined for a fight not only because of the Republican block on Judge Garland, but also because of the very President who nominated him – one who promised to employ litmus tests on abortion and guns, who largely outsourced the initial nomination process to the conservative Federalist Society and Heritage Foundation, and who has attacked federal judges who ruled against him, both as a businessman and as President.

And so Judge Gorsuch will face the multi-day Senate Judiciary Committee nomination hearing on Monday, in what Republicans probably hope will be a quick process to confirmation by the time Congress leaves for its Easter recess.

Judge Gorsuch’s supporters are anticipating several lines of attack from Senate Democrats, mainly concerns about decisions he made on women’s issues like the Hobby Lobby case, and his apparent bias towards business over regular people in labour-related cases.

Judge Gorsuch has been preparing for the hearings with help from lawyers in the Justice Department and the White House counsel’s office. That includes undergoing mock hearings, as well as extensively revisiting his own opinions and different areas of the law that could surface during the hearing.

Something to look out for starting from Monday: the Democratic senators who hail from states where Trump was elected. These are the most likely swing votes on Judge Gorsuch’s nomination. None of them are out of bounds for Republican outside groups trying to put the heat on Democrats.

Interestingly enough, the Judicial Crisis Network – an American conservative political campaign organisation – has so far apparently spent close to $5m of a planned $10m advertisement buy in support Judge Gorsuch. There is an expectation that around $15 to $20m will be spent by outside GOP groups on similar advertisement buys.

The key question is how far will the rest of Senate Democrats go with their opposition. Left-leaning advocates are vowing a big fight, and they have energised Democratic constituents on their side to pressure lawmakers to stay tough.

What is clear is that the nomination process will prove to be interesting: it is obvious that there will be Democrats who will seek to thwart President Trump, and it is equally as obvious that Republicans are willing to invoke the ‘nuclear option’ -changing Senate rules in relation to the 60 vote threshold for confirmation.

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.