While there are hints of the outcome for both civil and criminal justice in the wake of Brexit, the positions of UK and EU negotiators still give practitioners little certainty as to where we will be on 29 March 2019, including in relation to practice and establishment rights.
The concept that Britain might exit the EU without any deal on future trade has been gaining ground as negotiations have faltered. Two recent UK white papers on trade and customs, for instance, posit that possibility. Like many in industry, the Society favours a transitional period for departure, but that proposal currently lacks definitive core.
The Society’s extensive and successful work on Brexit, however, continues apace in the drive to place the law and the profession in the best possible position whatever the outcome.
In its Brexit work the Law Society has five key priorities:
- Continue mutual access for lawyers to practise law and base themselves in the UK and EU member states; rights of audience in EU courts, institutions and the Unified Patent Court (when it opens); and lawyers’ clients to have legal professional privilege.
- Maintain mutual recognition and enforcement of judgments and respect for choice of jurisdiction clauses across the EU.
- Maintain collaboration in policing, security and criminal justice.
- Ensure legal certainty is maintained throughout the withdrawal process, including transitional arrangements.
- Ensure the government works effectively with the legal services sector to continue to promote England and Wales as the governing law of contracts, the jurisdiction of choice and London as the preferred seat of arbitration.
I have heard arguments that the Society should have sought to influence the ‘in or out’ debate, but the Society is a representative body and its members come from both sides. This does not mean, however, that we have taken a neutral stance overall. We take a very active stance for the rule of law, legal certainty and for practitioners and their clients.
Over the past year the Society has established itself as a vital resource for government and stakeholders on some fundamental Brexit issues. Officers and staff from our London and Brussels offices have provided evidence to a wide range of those involved in the construction of the post-Brexit UK and EU, from the UK government and parliament to the EU parliament, to the EU parliament and commission.
As the Brexit nomenclature grows, the Society has established its ‘Brexpertise’ and that work is paying off. For example, ministers involved in the negotiation are reflecting many of the Society’s messages.
We were an early voice calling for a transitional period after March 2019 in order to deal with the complexities of withdrawal. The legal reality of undoing almost 45 years of integration is simply not a two-year job – unless one seeks a cliff-edge withdrawal.
The Withdrawal Bill may seek to integrate much EU law into domestic law, but for reciprocal arrangements (a very simple example of which is the Motor Insurers Directive) the embedding must be negotiated.
No details are given of what arrangements will look like in any transitional period but the Society will be working to ensure its priorities – which mirror the priorities of the profession and public – are part of the scenery for that period and beyond.
The Society has done much work over the past few years to protect the status the jurisdiction has in the world. Just last month we launched a number of videos as part of the Global Legal Centre campaign. This campaign has won government support, with the lord chancellor and others taking up the baton to promote a sector valued at £26bn with exports of £4bn.
We have also made progress in both civil and criminal justice. The recent position and partnership documents published by the government reflect our views. Both present policy challenges resulting from the current part that the ECJ/CJEU plays as the final arbiter in both and the government’s red line through any continuing ‘binding’ influence after Brexit.
While seeking to maintain that line the government has recognised that CJEU judgments are bound to be influential in any continuing relationship even if not binding.
Of course, the CJEU will maintain its UK jurisdiction for a variety of ongoing cases. It remains to be seen what role the CJEU will have in the transition period but the Society will be seeking certainty in both the law and its application after March 2019.
In civil justice the government has accepted much of the Society’s message. The position paper published in August remains subject to negotiation but some of our main planks have been included, including signing up to the Lugano Convention and establishing reciprocal civil justice co-operation ‘which would closely mirror the current EU system and provide a clear legal basis to support cross-border activities, after the UK’s withdrawal’.
In security and criminal justice the government recently published a Future Partnership paper seeking to maintain the status quo in cross-border co-operation. That is very much along the lines of the Society’s position.
Clearly we will become a third country after we leave the EU and the red line through the CJEU will cause problems in particular areas such as the European arrest warrant.
The deepest problem the Society has is to achieve the freedom to establish and practise law across the EU after Brexit. The EU and UK have initial set positions reflected in a Technical document on citizens’ rights produced by the EU Council at the end of August.
There is much yet to fight for. The Society is working in part through the CCBE but also with local bars to persuade them of the benefit for both sides of the existing practice freedoms.
While there remains uncertainty in the negotiations the job of the Society is to offer solutions that meet the agenda set by the politicians while at the same time reflecting our key priorities. The hard work is paying dividends.
David Greene, senior partner and head of litigation and dispute resolution at Edwin Coe, is chair of the Law Society’s Brexit taskforce