The difficulty in writing about Brexit more than 24 hours in advance of publication is that, as we have seen over recent weeks, the landscape and outlook change on an almost daily basis. This article, though, is not about our daily struggles, but the post-Brexit future. It assumes that we will one day leave the EU, maybe very soon.
That may be a departure with a transitional period where everything stays the same for a limited period, or a departure without one, which will inevitably bring sudden change (if it is a ‘no deal’ departure, I take this opportunity yet again to draw your attention to the excellent ‘no deal’ advice that the Law Society has recently published across a range of legal areas, which is available on its website).
Others have pointed out that there is precious little for the legal profession and the justice sector in the current versions of the prime minister’s deal. For instance, there is next to nothing about the two main post-Brexit concerns of solicitors – civil justice cooperation and practice rights – in the political declaration setting out the framework for the future relationship between the EU and the UK.
The Law Society has two main tasks, therefore, in securing the best possible outcome for the future: first, in disseminating relevant information; and second, in lobbying and negotiation.
Information is important because in a European landscape where EU rules will no longer apply to us, we will be dependent mostly on country-by-country rules. And each member state has different rules for third countries which are not part of the EU. There is a limit, though, on what information the Law Society can reasonably gather. There is a wide range of subject areas where a harmonised system of law will be replaced by country-by-country differences - for instance, aspects of consumer law. I suggest therefore that data should be maintained in just the two areas of our profession’s principal interest: civil justice cooperation and practice rights.
On civil justice cooperation, the Law Society has gathered data on the recognition and enforcement of judgments in civil and commercial matters between the UK and the EU (and EEA and Switzerland). So, for example, Belgium is a party to the Hague Convention on Service of Documents (1965), but Austria is not. There are three conditions for recognition of a foreign judgment in France, but five other conditions for such recognition in Germany. Solicitors will be saved a lot of trouble by having access to this data in an accessible and easy-to-understand form, pointing to each country’s legal provisions and case law.
On the second area of solicitor concern, practice rights, the Law Society has prepared an extensive overview of the national regulations that apply in each jurisdiction in the EU/EFTA. Those solicitors based in an EU member state, or thinking of basing themselves there, are advised to look at the regulations pertaining to their own location. Most member states are also introducing Brexit ‘no deal’ legislation. Some of it deals with lawyers and legal professions, such as in Germany. All this information on each member state is available from the Law Society.
The final area where the Law Society can provide useful pointers is in post-Brexit case law. There will clearly be many domestic UK cases on the consequences of our withdrawal. But these will be easier for us to find, given that both our language and our databases are familiar to us. What would be more helpful is if the Law Society could maintain an up-to-date database of all European Court of Justice and significant national cases specifically based on the consequences of Brexit, to help solicitors navigate what is likely to become a legal minefield.
Lobbying and negotiation
Lobbying and negotiation make up more familiar Law Society territory. The Society has been doing this for civil justice cooperation and practice rights for years.
There are complex issues to resolve, nevertheless. If we ask for everything to stay the same, with continuing liberal access to practise and our use of others’ legal systems, we will be accused of wanting to have our cake and eat it. But what should we give up?
In any case, no matter how long and hard we work the outcome of the discussions so far shows that we are a sector without much clout; and so are unlikely to achieve much in the formal documents which will be drawn up between the EU and the UK at the end of the trade negotiations. We will more likely be obliged to enter country-by-country negotiations with each of the remaining 27 member states, which is a resource-intensive and lengthy process.
All organisations like our own are having to face their post-Brexit future, and re-organise their priorities and objectives accordingly.
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