04 Jan 2021

UK lawyers count the cost of Brexit deal for legal services

National UK law societies cautiously welcome limited reference to cross-border legal services in Brexit agreement

By rzoze19; Shutterstock

UK law societies have expressed relief at the last-minute striking of the Brexit trade deal between the UK and the EU, highlighting an explicit reference to legal services in the agreement as the basis for further negotiations.

“We are pleased that the worst outcome – no deal – has been averted,” said David Greene, president of the Law Society of England and Wales (LSEW).

“We congratulate the negotiating teams on both sides for ensuring an agreement has been reached with, at least, some elements for legal services.”

He warned, however, that the new arrangements were “the beginning of a process as we try to find new ways of working in and with the EU”, noting that while legal services were mentioned in the Trade and Cooperation Agreement (TCA), there was little of substance to help facilitate UK legal services’ access to the EU.

He warned that the TCA “cannot be the end of the story but the starting point”, given the value of legal services to the UK’s economy.

Mickaël Laurans, the LSEW’s head of international, noted in a blog that the TCA contained a full section on legal services, setting out principles of market access for UK lawyers in the EU, and vice versa, under practice of their home title, including for dispute resolution and public international law.

This, he argued, would enable cross-border trade without the burden of either mutual recognition, or requalification, setting an important precedent that “puts legal services on the map in international trade negotiations”.

But he said the TCA’s provisions for legal services were not comparable to the market access previously enjoyed by the UK’s lawyers helping them to set up offices across the EU.

While the agreement was better than trading under WTO terms, he warned issues such as digital trade, mutual recognition of qualifications (for those seeking to advise on EU law), and judicial cooperation on civil and commercial litigation remained to be agreed.

For its part, the Law Society of Scotland’s (LSS’s) international department said the deal “reduced opportunities to export legal services, and limits the ways in which the legal professions in the UK can serve their clients”.

It added: “The TCA in this respect will put the professions at a competitive disadvantage as regards their EU counterparts”.

For Northern Ireland, the TCA builds on the previous Withdrawal Agreement under which Northern Ireland has access to the EU’s customs union and single market, subject to the Northern Ireland Protocol. This is expected to boost pan-Irish trade, including for lawyers.

Meanwhile, all three jurisdictions will continue to work with the Council of European Bars and Law Societies (CCBE), after new joint membership terms were agreed.

The continued presence of the UK delegation as a full member of CCBE was approved in the face of some opposition within the pan-European body in a move that was welcomed by Greene.

“The CCBE has altered its statutes and the UK has a new category of membership to ensure we maintain the dialogue in a meaningful way with our colleagues across Europe after Brexit,” he said in a LinkedIn post.

In November, the more than 4,000 England and Wales qualified solicitors who had gained admission to the Irish Roll of Solicitors in the hope it would allow them to practise EU law were told they had to be based in Ireland, or show they intended to move there, in order to obtain practising certificates.

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