The UK-EU future relationship

 CETA, CETA-Plus, or the barebones ‘Australia’ model: each side has been setting out their opening gambit for the future relationship between the UK and EU. The UK Government published its mandate for the negotiations on the 27^th February, two days after the European Council adopted its negotiating mandate, following several weeks of revisions during consultation with Member State governments, particularly regarding reservations.

While there are a number of major divergences between the two, the mandates will now provide the basis for the negotiations which began in the week commencing 2^nd March. It is expected that in terms of process, the negotiations will take place in 3-week cycles, allowing for one week preparation, one week negotiation and one week reporting (to the European Parliament on the EU side).

Initially there will be progress on all areas included in the mandates, and these are sufficiently broad to enable the Law Society of England and Wales to continue to make the case for an FTA which provides for legal services and has special provisions on access to justice and judicial co-operation.

In particular, the Law Society of England and Wales is keen to see early progress on Foreign Legal Consultant status; a framework for EU wide Mutual Recognition Agreements (MRAs) regarding professional qualifications; and provisions to enable short term mobility for the purposes of providing legal services cross border. It is anticipated these issues will be negotiated as part of discussions on the wider professional business services sectors. This reiterates how legal services is a profession which supports and enables all parts of the wider economy.

The discussions on trade in Services (and also with Goods) will be subject to various ‘horizontal’ matters, such as Level Playing Field commitments and national reservations. The former has already caused a lot of public debate, with the EU seeking assurances that the UK will not seek to diminish existing standards, on taxation, workers’ rights and environmental standards, in a race to the bottom to undercut the EU markets. The level of commitment sought from the UK in this regard does go beyond standard EU FTAs, for example with Canada and Japan, but is said to be linked to the ambitious EU offer of zero tariffs, zero quotas, which also goes beyond the most recent FTAs signed by the EU.

Given that the UK Government has stated, and indeed prohibited in national legislation, any extension to the transitional period, the window for negotiations is a narrow one, which must be completed by September or October at the latest, in order to facilitate the approval and ratification process to be completed in time for the 1^st January 2020.

This time pressure means that it is widely expected that by June both sides will take a stocktaking exercise after which they will prioritise certain areas for further negotiation in 2020. Early indications are that the EU will prioritise based on the progress to date but also, and more importantly, prioritise where there is no back-up framework which is available, for example as with Data and Aviation. The UK is likewise expected to prioritise but is said to be focusing on those areas where there is the most mutual economic benefit.

Alongside the main negotiations on the FTA, there are a number of ancillary discussions and agreements which will be taking place. Some of these will be critical for UK businesses, such as equivalence decisions on data and financial services.

Critically for the rule of law, this will also include developments on judicial co-operation. The EU mandate for the FTA negotiations encompasses only criminal law co-operation (within the security partnership) and family law to the extent that it is not addressed by the existing Hague Conventions in the area. These include in particular the 1980 Hague Child Abduction Convention, the 1996 Convention on Parental Responsibility Measures and Measures for the Protection of Children and the 2007 Hague Maintenance Convention to which the UK is expected to accede.

Even if the mandate does not mention anything about the recognition and enforcement of judgments in civil and commercial law, it is possible for the EU to engage in discussions on the Lugano Convention. It is a separate self-standing Convention and the EU and EFTA state will be the negotiating parties.

The Law Society of England and Wales is calling therefore on the UK Government to additionally begin the process of applying to accede to both the Lugano Convention and the Hague Judgments Convention, as part of the ancillary developments which will be happening in parallel to the main FTA negotiations. The EFTA states have already indicated that they would like the UK to continue in the Convention and would like to start the negotiations with the EU and the UK on this.

For more information on the Brexit work of the Brussels Office of the UK Law Societies and our preparation for the UK-EU Free Trade Agreement please contact brussels@lawsociety.org.uk