With the publication by the UK Government and subsequent ratification by the EU 27 of the Draft Withdrawal Agreement (‘DWA’) between the UK and the EU in November 2018, it was thought that a clearer picture might be emerging on the terms of the UK’s withdrawal from the EU. Following the comprehensive rejection of the DWA by Parliament, the terms of Brexit are once again shrouded in considerable uncertainty.
The Law Society of Northern Ireland has been pursuing a comprehensive engagement strategy with key stakeholders to raise the profile and awareness of the difficult issues which a disorderly Brexit would provoke. We have made strong representations to the Governments in London and Dublin, senior officials in Belfast and representatives of the European Commission and European Parliament.
In terms of the overall position, we have stressed the significance of the large number of negotiated agreements which facilitate co-operation across borders within the justice system in the interests of citizens. Unpicking instruments such as the Brussels Ia and IIa Regulations (1215/2012 and 2201/2003), the Rome I and II Regulations (593/2008 and 864/2007) and the Maintenance Regulation (4/2009) will cause significant disruption and this is to name only a few of the relevant statutes. These are concerns which I know we share with our friends and colleagues in England and Wales and Scotland.
The programme of work which it would take to negotiate replacements for those agreements if a disorderly withdrawal came about would be immense (and would be limited to those areas in which bilateral agreements were within the competence of Member States in any event). Critical issues include the smooth recognition and enforcement of judgments, choice of law for contracts, the status of family law instruments and the future of criminal justice co-operation. Given that the Irish border will be the only land frontier with the EU post-Brexit, the practical impact of unravelling these agreements in Northern Ireland should not be underestimated.
As the representatives of the profession in Northern Ireland, we have focused intensely on the absolute necessity of the continuation of seamless mutual recognition, admission and practice of solicitors between Northern Ireland and the Republic of Ireland, whether in the event of a withdrawal agreement or a ‘no deal’ Brexit. Making this the lead item on our agenda reflects the daily reality of cross-border relationships, commerce and family life; relationships which have a strong historical context outside of the debate around Brexit.
Whilst the view emerging has been that the expectation is that these arrangements should continue between jurisdictions post-Brexit, the Society’s message to those close to the negotiations has been to ensure that there is nothing done which may have any unintended impact on this reciprocity. Other crucial issues include ensuring that legal professional privilege attaches to NI firms (indeed all UK firms) in EU legal proceedings as any suggestion that this would not follow would have a negative impact on the competitive position of firms.
The Society has invested significant time and resource in this engagement and we have been clear that we support a mutually beneficial agreement between the UK and the EU. We believe that such an agreement is imperative if we are to avoid damaging uncertainty and diminution of existing legal rights which serve to grow businesses, protect the community in terms of crime reduction and support families whose circumstances stretch across borders.
Whilst discussions around an agreement have centred predominantly on the broad parameters of withdrawal, it is also important to focus clearly on the potential ways in which any removal or dilution of current provisions will affect the general public in terms of access to justice and protection of their human rights.
Suzanne Rice is President of the Law Society of Northern Ireland.