On the 10th February 2021, the UK Law Societies’ Joint Brussels Office organised an online event to hear directly from the Presidents of the UK’s three law societies on what they considered the main benefits of the Trade and Cooperation Agreement (TCA), what challenges remain and how they plan to engage with members moving forward. The Brussels Office also set out how they plan to assist and meet these challenges moving forward into 2021.
The link to the recording of the event can be found here, however, a short summary of key points is provided below. Time stamps are also available at the end of the article to individual areas.
David Greene, President of the Law Society of England and Wales
David Greene set out a positive overview of the recent times, stating that the pandemic had brought law societies together as they were facing common problems. This positivity continued into the outlook of the future of the UK’s role in the international legal landscape. He disagreed with some who may have believed without the single market the UK’s reputation may falter.
There are many factors which maintain the UK’s reputation, for example being at the forefront of LawTech development and remote hearings whilst also providing quick access to justice with swift resolution of commercial disputes. The UK is committed to excellency in legal services and the rule of law which will maintain its position as a global legal centre. This was more than just membership to the EU.
Regarding the TCA, it is believed that this sets out a narrative for the legal services sector and provides a foundation for future cooperation on the provision of legal services. Indeed with the inclusion of a dedicated legal services chapter this should be a precedent for future FTAs. However, this was perhaps pulled back to reality due to the reservations and schedules within the TCA which ensures reliance is placed on the domestic provisions of EU Member States in relation to practicing in foreign jurisdictions.
Ultimately, there is a lack of confidence and clarity in some provisions as they stand. However, the LSEW is dedicated to continuing to support solicitors both within England and Wales and in other jurisdictions as they face this new normal.
Rowan White, President of the Law Society of Northern Ireland
Rowan White provided a historical and contextual background to the Northern Ireland (NI) Protocol against the backdrop of the Good Friday Agreement. Within the Good Friday Agreement both governments agreed there would be no hard border and this was maintained under free movement provisions when within the EU. The NI Protocol attempts to limit tensions by ensuring no checks would be carried out between NI and the Republic of Ireland (ROI). NI remains part of the EU Single Market for Goods.
There have been some supply chain issues with some goods now prohibited from entering NI but there have been grace periods on the movement of such goods entering and extensions have been requested in order to alleviate issues. The issue with the EU invoking Article 16 in relation to the distribution of vaccines was discussed with the British and Irish governments uniting against wider checks on the border. This outcry caused the EU to backtrack on the course of action and instilled renewed enthusiasm to make the protocol work for the benefit of all people of NI.
There were issues discussed of what has been lost following the TCA. For example, the lost access to the European Arrest Warrant and the loss of the Lawyer’s Directive. Relating to the latter, it was explained how NI has entered into a mutual recognition agreement in the form of a memorandum of understanding with the Law Society of ROI to secure continuity of legal services on the island of Ireland.
Amanda Millar, President of the Law Society of Scotland
Amanda Millar explained how from the Law Society of Scotland (LLS)’s perspective they had a rolling action plan to be a leading non-partisan voice in the UK’s departure from the EU. Regarding policy, it was important for the Scottish Parliament to engage especially in devolved matters. In the area of trade, the LSS wished to input where necessary on new agreements and with government on practical issues of implementation regarding the legal sector. The LSS was committed to regular communication with members to help them navigate this new environment.
There was also discussion of the UK Withdrawal from the European Union (Continuity) (Scotland) Bill which is designed to align Scots law with EU law as much as possible post-transition and keep pace with future developments with EU law. It also allows changes to be made to retained EU laws already in operation including devolved laws such as the environment, agriculture and fisheries. The LSS has no view either way on the need or desirability for Scotland to keep pace with EU law but rather any significant departure from existing domestic law is given sufficient parliamentary consideration.
It was felt that we have left the EU but not Europe. Business culture, family and friendships will remain, as will trading goods and services even if at a lower level now than before. The future is unchartered territory but there are constants to grab hold of such as rule of law, democratic engagement, the needs of clients and expertise of the profession which will be unchanging and fixed to help guide future progression.
Helena Raulus, Head of the UK Law Societies’ Joint Brussels Office
Helena Raulus described how it was a good achievement to avoid the no-deal space via the TCA which provided a framework for the basic trade on goods and services, yet it did not solve everything. There is still work to be done on areas such as mutual recognition of qualifications and determining the effect of national reservations.
The Brussels Office continues to determine what is important and of interest to members in order to collect intelligence and have meaningful discussions on behalf of the UK membership in these areas. It was stressed that it is important to build on the basic framework and further work is needed on the co-operation that is present within the DNA of the agreement.
Regarding accession to the Lugano Convention, the UK applied to accede in April 2020, and we are still awaiting the EU to publish an opinion. There is no obligation on them to move quickly and we can only encourage matters in this regard. It was reiterated by all Law Societies that this was a top priority that would protect businesses and individuals, however, there were concerns that this may be a negotiating or political tool. It was optimistic that there would be an answer by the end of March.
Time stamps for individual presidents and selection of questions: