Withdrawal from the EU is staring us in the face. It is a good time to spell out what the consequences might be for lawyers.
Much depends on how the rest of the EU behaves. They are likely to be graceful, even though our government keeps telling them that they are just not good enough for our own elevated standards. So, if they are kind and permit us to join either the European Economic Area (EEA – other members: Norway, Iceland and Liechtenstein) or have the rights of Switzerland in the European Free Trade Association (EFTA), then the single market remains open. This is what I understand is the wish of even the most hardened Eurosceptic.
English solicitors have benefited hugely – probably more than any other European legal profession – from the single market. Gone are the days of negotiation with multiple European bars about conditions for access. There are now directives which regulate an extremely free market for the import and export of European legal services (temporary provision of services – 77/249/EEC, and permanent establishment – 98/5/EC). You only have to look at the list of English law firms in European cities to see how solicitors have taken advantage of the regime.
Eurosceptics see withdrawal (with continued participation in the single market) as a triumph of national sovereignty. The opposite is the case. The single market is a market created by laws. At present, the UK helps (in a diluted way, along with 26 other member states) to create those laws. Once in the EEA or EFTA, the UK would have to implement the laws but without any say in their formulation, which is a case of Euro-colonisation and not an exercise in national sovereignty.
This is not something remote, either. The lawyers’ directives, the very ones mentioned above, are in the process of being reviewed. There might be issues at stake of crucial concern to solicitors. For instance, should ABSs be allowed to cross European borders? Should UK regulators lose the power to exercise control over solicitors when established in other EU countries? Once the UK leaves the EU, these matters will be decided without the UK having any vote or direct say in the matter. That will be the wonder of our new national sovereignty in the single market.
Of course, we could leave both the EU and the single market, although I am not sure anyone favours that. I doubt that as a result English law firms would be flung out of the cities in which they are now established. But some of the rights that come with the directives – access to local courts and practice of local law, plus access to easy local requalification – would probably be withdrawn.
There are large issues in the world beyond the EU, currently dealt with as part of the EU’s competences, which also affect us. There is a momentous trade deal in the offing between the US and the EU. Solicitors, who have been trying for years to gain easier practice and requalification rights in all states in the US, have a strong interest in its outcome. Once we have withdrawn, the rights negotiated would not apply to us. Of course, the UK can negotiate its own trade agreement with the US, but we have less on offer that is of interest to the US when compared to the whole EU, and so less negotiating power. As a result, the US might not even be interested in pursuing a deal with us alone.
The same applies to other large cross-border issues which affect lawyers indirectly. The European Arrest Warrant, for all its flaws, is clearly beneficial to the UK’s crime-fighting. And I have lost track of the number of other topics which we are told by our government cannot be solved by them alone: terrorism, climate change, bankers’ bonuses, money laundering, tax evasion and so on. It is strange to withdraw from a powerful regional grouping which has the power to tackle these issues, alone or with other blocs, and all in the name of national sovereignty. Ask Switzerland about the value of its national sovereignty, in view of its inability to control two key features of its national life: banking secrecy and the value of its currency. It often appears weak and semi-colonised.
I know that the eurozone might drag us all to ruin (but would the UK escape the consequences outside?). I know that it is comforting to think that the pretence of national sovereignty would make our problems disappear (but even Boris Johnson has recently seen through that one). In my view, a clear-eyed approach to our future as lawyers makes only one outcome advantageous, and that is to stay in the EU, regardless of how far David Cameron succeeds with his much-touted renegotiations.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs