Solicitors currently living in an EU member state, and taking advantage of the provisions of the Establishment Directive 98/5 to earn their living, are members of a group not often considered in the Brexit debate.
The EU-based British, despite being desperately affected by the decisions taken, are often cut out of the democratic process. If they have been out of the UK for 15 years, they can no longer vote, and maybe could not vote in the 2016 referendum which changed their lives so radically. If they can vote, they often suffer from problems like the non-arrival of ballot papers or the inability to post them back in time.
These lawyers have been through two cliff-edges now (March and October 2019), when it seemed as if we might crash out of the EU. Had that happened, they would have been dependent on World Trade Organisation (WTO) rules to remain and practise.
WTO rules mean grappling with a complicated mass of national legislation about what each member state permits a foreign lawyer to do, through what vehicle and for how long. That is because, although the EU is responsible for the trade schedules at the WTO, these schedules, at least in regard to legal services, are subject to existing national conditions that member state demanded be maintained in the offer.
Since the various permutations of the outcome of our general election are obviously unknown, I will theorise only on the basis that the Conservatives are returned to government. There will presumably be an exit from the EU on 31 January 2020, followed by a transitional period lasting 11 months, during which nothing will change. After that, the provisions of the withdrawal agreement will take effect.
Under the withdrawal agreement, EU-based solicitors who have at least applied for the local title with their local bars will be able to stay and practise in that member state, but will lose the ability to provide cross-border services from that member state. They will also lose the right to move to another Member State and establish there. An argument that the ability to move and provide cross border legal services was an acquired right of citizenship, and so should be retained, was rejected at the time by the EU, which argued that it was an economic and not a citizen’s right.
Of course, these solicitors have not stood idly by awaiting the damage. They have moved to protect themselves. All the EU-based people I know have applied for local nationality and the local title. The combination of these two measures enables them to continue to take advantage of the full EU regime.
It is a strange sight to see proud Brits queuing up to acquire a new nationality. In Belgium, the Brits swap stories about the practices of their commune (which is the level at which nationality is granted), and whether it is better to be living in a francophone or Dutch-speaking commune, how they passed the language test, and how pleased they were when they became Belgian.
Solicitors in various member states have differing stories about how welcoming the local Bar has proved to be. The Law Society has been busy on this point, engaging in a round of negotiations with member state bars to come to agreements.
Again, Belgium is a good example. A Memorandum of Understanding (MoU) was signed between the UK legal professional bodies and the Belgian and Brussels Bars in October 2019 to protect the rights of UK lawyers already established, by waiving the local nationality requirement until the end of December 2020 (if necessary), allowing UK lawyers extra time to requalify under the 98/5 Directive.
This MoU is an interesting document, setting out the foreign lawyer provisions which apply in either country, and expressing the common intent of the Belgian Bars to lobby their own government to obtain a permanent waiver of local nationality requirements for UK lawyers, should that still be applicable after Brexit.
So English and Welsh solicitors living in the EU have been on a rollercoaster ride since the vote in June 2016, affecting both their national identity and their ability to earn a living in future. They have by and large managed to future-proof themselves.
Our thoughts should also be with the future generations of solicitors who will not have the same ability. They will likely have to rely on WTO rules in the EU. That is because any future UK-EU trade agreement, certainly if negotiated over only 11 months (when just the main elements of our economy will be able to be included) or even if negotiated over 7 or 8 years as is more likely, is very unlikely to include the generous provisions now available to lawyers under the EU regime, since free trade agreements have not historically covered legal services, either at all or in much detail.