The EU lobbying transparency regime will still affect lawyers’ work post-Brexit.
In accordance with Article 1 of the great repeal bill announced by our prime minister, this article will self-destruct in about two and a half years’ time. That is because it deals with a recent European Commission initiative, and after that period of time we will be free at last, after more than forty years of enslavement to the EU.
Except that, as with so much else talked about Brexit, it is not true. The commission initiative will still apply to us.
The policy concerned is the commission announcement about improvements to the EU lobbying transparency regime. I have written about this previously, since the current lobby register arrangements have caused various concerns to lawyers. These have mainly focused on the impact on lawyer-client confidentiality (because lawyers are pressed to disclose details of their arrangements with clients), but also touched on the breadth of the definition of lobbying (which could catch ordinary legal transactions on behalf of a client) and the lack of due process (since the institutions are judge and jury in deciding how to deal with breaches).
Some of these concerns have been dealt with in the new initiative.
There are two significant aspects to the recent announcement. The first is that, after much toing and froing, the register will become mandatory. It will be a precondition for what is called ‘interest representation’ that ‘interest representatives’ are first enrolled in the register, and have accepted the Code of Conduct. Otherwise, there will be no access to decision-makers, premises, policy forums or information, with different consequences for each institution. As an example of the exclusions, you will need to be on the register to be a speaker at a committee hearing at the European Parliament, or to be appointed a certain type of expert group by the commission, or to receive alerts from the European Council.
Second, the need for registration will now cover the council, which has fought against being covered by the existing arrangements (that for the time being extend only to the European Commission and European Parliament). Doubtless, the council will continue to struggle, as the negotiations begin on the final deal.
As for lawyers, there is now a new and lengthy article about what is not covered by the definition of lobbying, and it is worth quoting in full. The following is excluded:
‘a) The provision of legal and other professional advice in the context of a client-intermediary relationship, where:
— it consists of representation in the context of a conciliation or mediation procedure aimed at preventing a dispute from being brought before a judicial or administrative body;
— it consists of advice given to clients to help them ensure that their activities comply with the existing legal framework; or
— it relates to representing clients and safeguarding their fundamental or procedural rights, such as the right to be heard, the fundamental right of a client to a fair trial, including the right of defence in administrative proceedings, such as activities carried out by lawyers or by any other professionals involved therein.’
This is an improvement on the current position, largely thanks to persistent lobbying by the Council of Bars and Law Societies of Europe (CCBE). It does not mean that law firms are excluded from the provisions – on the contrary, they have their own classification section in the register.
There is another improvement, too. In the very last sentence of the revised Code of Conduct, there is a provision stating that ‘Registrants that are not satisfied with the decision by the Management Board may submit an application to the Court of Justice or a complaint to the European Ombudsman’.
Finally as regards the impact on lawyers, the commission says that the disclosure process will become simplified and more targeted for all.
But Brexit will bring this Euro-meddling to an end, surely? We have our own UK Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014, and so can repeal this nonsense in due course.
Well, the great repeal bill will set us free, but lobbying the EU will remain an important part of our future life, and we will remain subject to its rules. Significant decisions will continue to be made by our giant trading neighbour on a range of matters affecting the UK, which we will want to influence in advance. In any case, the large UK law firms will remain in Brussels and other EU capitals, serving a range of clients from inside and outside the EU, and they will continue to lobby the EU.
The one difference will be that, whereas our government now has a say on the present changes as the negotiations continue, once our freedom comes we will just have to accept any future modifications whether we like them or not.
Jonathan Goldsmith is a consultant and former secretary-general at 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