The UK-EU Trade agreement is just the starting block for legal services

BREXIT

The UK-EU Trade agreement is just the starting block for legal services

It was the night before Christmas, and all through the house… commentators were waiting on tenterhooks for a Brexit deal to be announced. Santa Claus came in the form of Boris Johnson placing the gift of a Trade & Co-operation Agreement (TCA) under the tree. The news was met with sighs of relief, congratulations for the negotiating teams, and anticipation for the soon-to-be-published legal text. At the Law Society, we were quick to set out a narrative for the legal services sector – that it is vital to see the deal as the beginning of a process, rather than a monolith, as we find new ways of working in and with the EU.

If we examine it through that prism, the deal is positive for the legal services sector. First, the scorched earth of a no deal is avoided – an unmitigated benefit. Second, there is a dedicated legal services chapter, indicating the UK and EU place a (deservedly) high value on the profession and its services and exports. This sets a useful precedent for other free trade agreements, and provides a springboard to launch into discussions on other areas of legal cooperation; including civil justice. Third, the principles within the chapter are good: advice on home country and public international law; arbitration, conciliation and mediation; registration processes that cannot be more burdensome than requalification; and the right to establish. As a foundation, it is strong basis for a close future relationship on legal services as new arrangements are made.

But – and it is a fairly substantial but – through a different prism, the prism of actual market access for the profession, the deal is somewhat less of a feel-good story. This is a deal that gives with one hand and takes with the other. In particular the provision of cross-border legal services is subject to reservations, nonconforming measures, and national requirements, which will vary hugely from state to state. These measures can cancel or limit the general principle of home title practice for a given member state and may include restrictions on joint practice with local lawyers, so the true picture on market access is very much obscured by domestic regulation. The Law Society is working hard to analyse these domestic reservations (contained in the deal’s Annex SERVIN-1) and communicate the results to members as soon as we are able.

There are other concerns. Civil judicial co-operation isn’t covered in the agreement (although criminal judicial co-operation is – to positive effect). We secured a short transition for data under GDPR but there is not yet a decision on data adequacy. The fact that these crucial elements are missing leaves lawyers, businesses and consumers lacking the confidence and stability needed for trade to flourish.

So we – as solicitors, as the Society, and as a sector – have our work cut out for us. We will continue to urge the EU to support the UK’s accession to the Lugano Convention, allowing civil and commercial judgments to be recognised cross-border meaning ordinary citizens and small and medium size businesses can enforce their rights without taking up prohibitively expensive actions in multiple courts. The EU decision on that has to be delivered by March. We will work with national bars to clarify, and liberalise, requirements on UK lawyers wishing to practise in EU states. And, as we have done since the referendum, we will support solicitors of England and Wales as they adapt to the new normal, and champion the importance of our profession – worth £5bn in exports – to Government, Parliament and the public. ■

David Greene

David Greene

President The Law Society of England & Wales