The UK government’s Brexit messaging has undergone quite a significant transformation in recent weeks. From stressing that while a no-deal Brexit might be possible, the government was still very much aiming for a withdrawal agreement to be in place at date of departure, the message is now unequivocal: the UK is leaving the EU on 31 October and we all need to prepare for it.

As part of the UK government’s wider ‘Get Ready’ campaign, which aims to provide businesses and citizens with the information they need to take action to prepare for a no-deal Brexit, the Ministry of Justice has published a ‘Get Ready’ Toolkit for lawyers. It incorporates all the information and guidance they have published online on what steps lawyers may need to take – whether UK lawyers practising in the EEA/Switzerland or vice versa – to maintain their business and/or their practice rights.

The existing online guidance for individuals and businesses working within the legal services sector covers:

·         Guidance for EU lawyers practising in the UK

·         Guidance for UK lawyers practising in the EU, Norway, Iceland or Liechtenstein

·         Guidance for legal service business owners after a no-deal Brexit

·         Guidance for legal professionals on family law disputes involving the EU after Brexit

·         Guidance for legal professionals on cross-border civil and commercial legal cases after Brexit

·         Information on changes to legislation concerning the operation of current EU measures related to criminal law  

The role of the regulators

While the UK government has collated these various areas of guidance, and the UK and Scottish parliaments have passed regulations to clarify the position of EEA and Swiss lawyers in the UK post exit-day, much is in the hands of regulators and professional bodies to clarify and make further provision for.

For the Law Society of Scotland, this has included an examination of our practice rules and corresponding processes dealing with the registration of EEA and Swiss lawyers under their home title and those elements of our admissions rules setting out the requalification process for EEA and Swiss candidates. It also extends to the need to ensure that we can continue to exchange personal and potentially sensitive information with our EEA/Swiss colleagues in respect of cross-border practitioners by entering into data-sharing agreements with them.

While the UK government has undertaken to allow the free flow of personal data from the UK to the EU, until and unless the EU Commission makes an adequacy decision in respect of the UK, the standard contractual clauses for controllers to controllers that have been adopted by the European Commission are an appropriate safeguard for the exchange of information between bars to ensure compliance with the GDPR-restricted transfer rules.

Mutual Recognition Agreements

Although the UK government cannot begin negotiations with the EU on a future relationship until the UK has left, this should not prevent constructive dialogue taking place between bars in a bid to keep recognition and access routes open as far as possible. Many member states have restricted access routes to the legal profession for non-EU nationals, and while formal bilateral agreements cannot be reached on a state-by-state basis and these barriers will arise initially after a no-deal Brexit for UK qualified lawyers, we – along with our UK colleagues – are keen to reach positions of understanding with colleagues that could be used as a basis for further agreement once the UK-EU relationship in a post-Brexit environment is better understood.

It is through keeping these channels of communication open that we hope to continue the positive engagement that we value with our EU colleagues for the mutual benefit of our members as well as the clients that they serve.

To access the Toolkit for Lawyers, as well as the Law Society of Scotland’s own Brexit policy work, visit our website.

For any questions relating to practising in Scotland post-Brexit, contact Katie Hay.

Katie Hay is Head of International The Law Society of Scotland.