The Law Society has always sensibly kept out of the Leave-Remain Brexit debate. Its members come from both camps, and it has never expressed a view on the central question.
On the other hand, Brexit will affect our profession in a variety of ways, and the Society should protect our interests. At the time of writing, it seems that some sort of ‘no deal’ arrangement will be pursued by some MPs over the coming weeks. My question is what, if anything, the Law Society should do regarding the ‘no deal’ question. Should it assess the impact on its members and then express a view on such an exit, or stay silent regardless?
Until a week or two ago, that would have been a more neutral question. But now no-deal has been weaponised. The Labour party said it would not enter talks with the government unless no-deal was taken off the table, and some Brexiters have equated those against a no-deal with the aims of Remainers. Can the Law Society safely enter into this minefield?
Regardless of whether you support Leave or Remain, no-deal will have an impact on the legal profession. The principal impact comes from there being no transition period. With a deal – presumably any deal, and not just the prime minister’s version – comes a transition period of two years during which nothing will change. A transition period gives the profession and the public two more years to prepare for significant changes. Those significant changes for the profession fall into two categories.
The first category is practice rights, or the ability of solicitors to continue to take advantage of the current EU liberal cross-border regime for plying their profession. It may be argued that this affects only a relatively small number of solicitors, and that they work principally in large firms which are able to look after themselves. But we are all part of the same profession, and damage to one is damage to all.
The ability of some solicitors to earn their livelihoods will be severely limited – for instance, those who are based in the UK or in an EU member state whose main business lies in offering legal services to clients based elsewhere in the EU. The Law Society routinely intervenes to protect its members’ abilities to earn a living. There are 1.2 million UK citizens living in the EU, and hundreds of them are practising solicitors.
A second category to be affected by no -deal encompasses solicitors with cross-border cases, even if they are based in the UK. EU instruments in justice affect a wide variety of cross-border cases in both the civil and criminal field. Dealing only with civil justice, they cover recognition and enforcement of judgments, service of documents, evidence, along with specific rules in the areas of insolvency, motor insurance, small claims and mediation. The Law Society’s guide to a no-deal Brexit in this area states: ‘In the event of a no-deal Brexit, the status of ongoing cases is unclear. As the UK will leave the EU on 29 March 2019, the rules governing the enforceability of any case decided after that point will cease to have effect. At that point, there is a risk that parallel cases may be taken in multiple jurisdictions.’
An extra two years, during which negotiations may take place on this point between the UK and the EU, would help solicitors and their clients to prepare for and handle these complexities in the least harmful ways. The usual place to look for data for such cases is in statistics collected by the EU, but the UK decided at the time when Chris Grayling was lord chancellor to no longer provide such data to the EU. Finally, there is the argument that a transition period helps the rule of law by tending towards greater orderliness.
If it is accepted, then, that there are arguments in favour of the Law Society lobbying against a no-deal Brexit – to support its members’ livelihoods and to guarantee as orderly and efficient a transition from one legal regime to the other for solicitors, their clients and the public interest – does it mean that the Law Society should actually do so?
This is a case of balancing two duties of the Society against each another: the duty to protect its members’ interests (along with the public interest, to which many would give higher priority) against the duty not to be guilty of political partisanship. As we know, the political partisanship in this case is of the deepest sort, cleaving the country into two bitter and so far unreconciled camps. Maybe, if asked, solicitors would answer in accordance with their Brexit loyalties.
It is an unenviable choice for the Law Society to face.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council