Robert Bourns, President of the Law Society of England and Wales shares his reaction to the UK’s vote to leave the European Union.
The decision of the British public to vote for Brexit led to a sharp intake of breath not just in the UK but in Europe and the wider world. The political fallout began immediately but even as David Cameron was resigning and the process for replacing him getting underway, colleagues at the Law Society were meeting to continue discussions that had begun some months before the referendum.
And since the 24 June our thinking about the legal sector and the solicitor profession in the context of Brexit has developed. The past few months have seen us engaged on this point with all parts of the legal profession in England and Wales – including in the City, in-house and nationally - but also with colleagues overseas, foreign lawyers operating in London and with senior figures in the EU and in the UK government. Our priorities are clear.
Our clients live increasingly international lives, the legal services they need cannot be bound by national borders. Whether dealing with the supplier for their Bordeaux-based business, custody arrangements for family members in Frankfurt or supporting employees in Eindhoven, solicitors are best able to serve their clients when they can serve them wherever they are.
The Lawyers’ Services Directive and the Lawyers’ Establishment Directive have together opened the European market to solicitors, giving us this mobility to move along with our clients. They give us the clear ability to practice, work and re-qualify, and ensure that vital tools of the solicitors trade, such as Legal Professional Privilege that attaches to our advice, remain available to us.
Our own market is very open to foreign lawyers. We are delighted to welcome the 200 offices of overseas firms to London. Practitioners enjoy and require reciprocal rights. Loss of these rights would not only shackle our legal professions working together in this market, but do a huge disservice to our clients and risk the integrity and standing of the market place.
Nor must Brexit mean that progress made on settling disputes over business transactions be undermined. After all, two-way trade between Britain and the other EU countries was worth £513bn in 2015.
Within the EU we have a clear set of rules. The Brussels I Regulation allows the recognition and enforcement of court decisions in civil and commercial matters between the Member States while the Rome I and Rome II give guidance as to which country’s laws are applied. The Law Society will be calling for these mechanisms to be maintained in the withdrawal negotiations.
Whatever the exact form of the new regime, maintaining the same level of clear, efficient and effective cross-border dispute settlement mechanisms must be a Brexit bottom-line. Anything less imperils over £500 billion of British business.
Working to tackle crime
We are also asking for co-operation in criminal justice and security matters to continue.
At the moment UK police and our criminal courts work closely with their European counterparts and there are a number of existing agreements and systems that govern this arrangement. Whatever decisions are made on the UK’s future relationship with the EU, the Law Society believes there are compelling reasons why mechanisms such as the European Arrest Warrant need to continue.
The European Investigation Order (EIO) - due to be implemented in May 2017 - meanwhile introduces mutual recognition into mutual legal assistance arrangements for investigating crime and obtaining evidence for use in criminal proceedings. It will replace the 2000 Convention on Mutual Assistance in Criminal Matters. It is expected this mechanism will speed up processes in terms of coordinating criminal investigations and criminal proceedings.
Then there is the Schengen Information System II, an EU-wide IT system that allows countries to share law enforcement alerts in real time, for example information about arrest or people being placed under police protection.
However Brexit redefines the relationship we have with the EU, we must make sure we maintain a unified front in the fight against crime.
Jurisdiction of choice
Finally I should say something about jurisdiction. England and Wales hold a enviable position as the leading global centre for legal services. Our law is clear, certain and stable; our courts are renowned for their fairness and impartiality; our law firms are widely respected and, via their international offices, have carried Law England & Wales across the world. We must ensure that English firms are not fettered in their ability to introduce “English Law” to the corporate and commercial transactional work in the short or longer term.
This position to date has allowed the legal services sector to make a huge contribution to UK PLC, adding £25.7 billion to the national economy each year, generating £3.6 billion in international earnings, and employing an estimated 370,000 people.
One of the key challenges that the Brexit negotiations pose for the legal profession is how we ensure that exiting the European Union doesn’t threaten the world standing of our jurisdiction, and the huge contribution it brings to our economy. We recognise that, establishing the position of English Law and standing of this jurisdiction, relies on a collaborative effort, involving colleagues from other professions, who recognise the efficacy of our common law jurisdiction. We need to ensure that our messaging is inclusive, recognising that we work together in the interests of our respective clients.
We know that there is no good reason Brexit should undermine England and Wales as a global legal centre. Our law will remain stable, our solicitors and their offices across the world remain open for business and our courts will remain available to adjudicate disputes if required. Ensuring this message is out there, striking the right tone, will be a key focus for the Law Society over the coming years, using our networks and position to promote the certainty, stability and confidence of the English and Welsh legal professionThe decision of the British public to vote for Brexit led to a sharp intake of breath not just in the UK but in Europe and the wider world. The political fallout began immediately but even as David Cameron was resigning and the process for replacing him getting underway, colleagues at the Law Society were meeting to continue discussions that had begun some months before the referendum.