Lawyers deal with over 40 EU agencies in the course of their client work.  What will they do post-Brexit?

A recent article about the future role of the UK in relation to EU agencies has prompted me to think about those agencies which deal most directly with matters affecting lawyers.

There are over 40 EU agencies, providing European institutions and member states with specialised knowledge. Some have regulatory or quasi-regulatory powers: the European Aviation Safety Association certifies that UK aircraft are fit to fly; the European Medicines Agency provides the certification to allow UK-made drugs to be traded; and there are similar bodies across various industries like food and drink, chemicals, transport and cross-border data flows.

I assume that on departure we will either purchase individual membership of particular agencies, or set up our own to do the same regulatory job for the UK in key areas. It may be cheaper and more efficient to buy individual memberships, since setting up our own will mean duplication of work and less ability to profit from the international knowledge and economies of scale provided by the current EU bodies.

Lawyers will deal with a range of agencies in their day-to-day substantive client work: OHIM (the European trademarks agency) and ESMA (European Securities and Markets Authority) are two of the most likely to crop up. The work of just those two is already causing substantive debate in their respective fields about how the UK and the EU will relate in the future.

At the weekend, there was news about the struggle to host the two EU agencies based in London, the European Banking Authority and the European Medicines Agency. The competition over who will host the latter has grown so fierce that one European newspaper found it simpler to list the five small countries which have not so far entered the fray.

Regarding lawyers, we know that the government wants to keep close cooperation with the agencies involved in criminal justice and security cooperation: presumably Europol, which deals with serious international crime and terrorism from a policing angle, and Eurojust, which deals with more or less the same topics from the point of view of the prosecution. Both are based in The Hague, and one of them – Europol – is led by a Brit. Their usefulness has been pretty well aired in the Brexit debate.

The one which is not so well known is the European Union Agency for Fundamental Rights (FRA), based in Vienna. Its strapline is ‘Helping to make fundamental rights a reality for everyone in the European Union’, and it does this in a variety of ways: delivering formal opinions (for instance, if requested by an EU institution or member state when implementing EU law), collecting and analysing information and data, and promoting awareness of fundamental rights.

To make its work more concrete, I will focus on its most recent opinion, published just a few days ago, on ‘Improving access to remedy in the area of business and human rights at the EU level’ – although it has also done much work in the areas of access to justice, migration and discrimination. Its recent opinion gives a flavour of its contributions, with a large number of recommendations, including:

  • the encouragement of crowd-funding for business and human rights cases
  • giving legal standing also to not-for-profit bodies which act in the public interest and whose statutory objectives are to protect and assist victims of business-related human rights abuse 
  • the encouragement of a rebuttable presumption requiring a certain level of evidence, which would shift the burden of proof from a victim to a company to prove that a company did not have control over a business entity involved in a human rights abuse

The UK is mentioned favourably in the report in a few places. First, it is already committed to encouraging UK companies to establish or participate in grievance mechanisms and to extend such grievance mechanisms to their overseas operations. Second, the Modern Slavery Act provides for a ‘comply/explain’ transparency requirement. Third, our Civil Procedure Rules require businesses to disclose the existence (or previous existence) of a wide range of documents. And, finally, the UK is one of eight member states so far to have produced a National Action Plan under the UN Guiding Principles on Business and Human Rights.

The FRA cannot claim the regulatory role of some agencies, nor the security angle of others. It also has to face Brexiteers’ claim that we don’t need European human rights, since we have our own British ones. We will no longer care about its excellent work in producing guides, or research, or the expertise to ensure that EU law is compliant with human rights. So it seems that this is one which we probably won’t be joining afterwards.

Jonathan Goldsmith is former secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs